The Project Gutenberg eBook of The Journal of the Debates in the Convention which Framed the Constitution of the United S

The Project Gutenberg eBook of The Journal of the Debates in the
Convention which Framed the Constitution of the United States, v. 1, by
James Madison.
*** START OF THE PROJECT GUTENBERG EBOOK 40861 ***
The Journal of the
Debates in the Convention
Which Framed
The Constitution of the
United States
May-September, 1787
As Recorded by
James Madison
Edited by
Gaillard Hunt
In Two Volumes
Volume I.
G. P. Putnam's Sons
New York and London
The Knickerbocker Press
1908
The Knickerbocker Press, New York
[pg iii]
CONTENTS OF VOLUME I.
PAGE
The Records of the Constitutional Convention (Introduction by the
Editor)
vii
Chronology
xix
Journal of the Constitutional Convention of 1787
[pg v]
LIST OF FAC-SIMILES.
FACING
PAGE
First Page of Madison's Journal, actual size
Charles Pinckney's Letter
20
The Pinckney Draft
22
Hamilton's Principal Speech
154
[pg vii]
THE RECORDS OF THE CONSTITUTIONAL CONVENTION.
James Madison's contemporaries generally conceded that he was the
leading statesman in the convention which framed the Constitution of the
United States; but in addition to this he kept a record of the proceedings
of the convention which outranks in importance all the other writings of
the founders of the American Republic. He is thus identified, as no other
man is, with the making of the Constitution and the correct interpretation
of the intentions of the makers. His is the only continuous record of the
proceedings of the convention. He took a seat immediately in front of the
presiding officer, among the members, and took down every speech or motion
as it was made, using abbreviations of his own and immediately afterwards
transcribing his notes when he returned to his lodgings. A few motions
only escaped him and of important speeches he omitted none. The
proceedings were ordered to be kept secret, but his self-imposed task of
reporter had the unofficial sanction of the convention. Alexander Hamilton
corrected slightly Madison's report of his great speech and handed him
his plan of government to copy. The same thing was done with Benjamin
Franklin's speeches, which were written out by Franklin and read by
his colleague Wilson, the fatigue of delivery being too great for the aged
Franklin, and Madison also copied the Patterson
[pg viii]
plan. Edmund
Randolph wrote out for him his opening speech from his notes two years
after the convention adjourned.
[1]
[1]
Madison to Randolph, April 21,
1789.
In the years after the convention Madison made a few alterations and
additions in his journal, with the result that in parts there is much
interlineation and erasure, but after patient study the meaning is always
perfectly clear. Three different styles of Madison's own penmanship at
different periods of his life appear in the journal, one being that of his
old age within five years of his death. In this hand appears the following
note at the end of the journal: "The few alterations and corrections made
in the debates which are not in my handwriting were dictated by me and
made in my presence by John C. Payne."
[2]
The
rare occasions where Payne's penmanship is distinguishable are
indicated in the notes to this edition.
[2]
Mrs. Madison's brother.
The importance attached by Madison to his record is shown by the terms of
his will, dated April 15, 1835, fourteen months before his death:
"I give all my personal estate ornamental as well as useful, except as
herein after otherwise given, to my dear Wife; and I also give to her
all my manuscript papers, having entire confidence in her discreet and
proper use of them, but subject to the qualification in the succeeding
clause. Considering the peculiarity and magnitude of the occasion which
produced the Convention at Philadelphia in 1787, the Characters who
composed it, the Constitution which resulted from their deliberations,
its effects during a trial of so many years on the prosperity of the
people living under it, and the interest it has inspired among the
friends of free Government, it is not an unreasonable inference that a
careful and extended report of the proceedings and discussions of
[pg ix]
that body, which were with closed doors, by a member who was constant in
his attendance, will be particularly gratifying to the people of the
United States, and to all who take an interest in the progress of
political science and the course of true liberty. It is my desire that
the Report as made by me should be published under her authority and
direction."
[3]
[3]
Orange County, Va., MSS. records.
This desire was never consummated, for Mrs. Madison's friends advised
her that she could not herself profitably undertake the publication of the
work, and she accordingly offered it to the Government, by which it was
bought for $30,000, by act of Congress, approved March 3, 1837. On July 9,
1838, an act was approved authorizing the Joint Committee on the Library
to cause the papers thus purchased to be published, and the Committee
intrusted the superintendence of the work to Henry D. Gilpin, Solicitor of
the Treasury. The duplicate copy of the journal which Mrs. Madison had
delivered was, under authority of Congress, withdrawn from the State
Department and placed in Mr. Gilpin's hands. In 1840 (Washington:
Lantree & O'Sulivan), accordingly, appeared the three volumes,
The
Papers of James Madison Purchased by Order of Congress
, edited by
Henry D. Gilpin. Other issues of this edition, with changes of date, came
out later in New York, Boston, and Mobile. This issue contained not only
the journal of the Constitutional Convention, but Madison's notes of
the debates in the Continental Congress and in the Congress of the
Confederation from February 19 to April 25, 1787, and a report Jefferson
had written of the debates in 1776 on the Declaration of Independence,
besides a number of letters of Madison's. From the text of Gilpin a
fifth volume was added to Elliot's
Debates
[pg x]
in 1845, and it was printed
in one volume in Chicago, 1893.
Mr. Gilpin's reading of the duplicate copy of the Madison journal is
thus the only one that has hitherto been published.
[4]
His
work was both painstaking and thorough, but many inaccuracies and
omissions have been revealed by a second reading from the original
manuscript journal written in Madison's own hand, just as he himself
left it; and this original manuscript has been followed with rigid
accuracy in the text of the present edition.
[4]
Volume iii of
The Documentary
History of the United States
(Department of State, 1894) is a
presentation of a literal print of the original journal, indicating by
the use of larger and smaller type and by explanatory words the
portions which are interlined or stricken out.
The editor has compared carefully with Madison's report, as the notes
will show, the incomplete and less important records of the convention,
kept by others. Of these, the best known is that of Robert Yates, a
delegate in the convention from New York, who took notes from the time he
entered the convention, May 25, to July 5, when he went home to oppose
what he foresaw would be the result of the convention's labors. These
notes were published in 1821 (Albany), edited by Yates's colleague in
the convention, John Lansing, under the title,
Secret Proceedings and
Debates of the Convention Assembled at Philadelphia, in the Year 1787, for
the Purpose of Forming the Constitution of the United States of America
This was afterwards reprinted in several editions and in the three
editions of
The Debates on the Federal Constitution
, by Jonathan
Elliot (Washington, 1827-1836). Madison pronounced Yates's notes
"Crude and broken." "When I looked over them some years ago," he wrote to
J. C. Cabell, February 2, 1829, "I was struck with the number of instances
in which he had totally mistaken what was said by me, or given it in
scraps and terms which, taken without the developments or qualifications
[pg xi]
accompanying them, had an import essentially different from what was
intended." Yates's notes were colored by his prejudices, which were
strong against the leaders of the convention, but, making allowance for
this and for their incompleteness, they are of high value and rank next to
Madison's in importance.
Rufus King, a delegate from Massachusetts, kept a number of notes,
scattered and imperfect, which were not published till 1894, when they
appeared in King's
Life and Correspondence of Rufus King
(New
York: Putnam's).
William Pierce, a delegate from Georgia, made some memoranda of the
proceedings of the convention, and brief and interesting sketches of all
the delegates, which were first printed in
The Savannah Georgian
April, 18-28, 1828, and reprinted in
The American Historical Review
for January, 1898.
The notes of Yates, King, and Pierce are the only unofficial record of the
convention extant, besides Madison's, and their chief value is in
connection with the Madison record, which in the main they support, and
which occasionally they elucidate.
December 30, 1818, Charles Pinckney wrote to John Quincy Adams that he had
made more notes of the convention than any other member except Madison,
but they were never published and have been lost or destroyed.
[5]
[5]
See p. 22, n.
In 1819 (Boston) was published the
Journal, Acts and Proceedings of the
Convention
, etc., under the supervision of John Quincy Adams,
Secretary of State, by authority of a joint resolution of Congress of
March 27, 1818. This was the official journal of the convention, which the
Secretary, William Jackson, had turned over to the President, George
Washington, when the convention adjourned, Jackson
[pg xii]
having previously
burned all other papers of the convention in his possession. March 16,
1796, Washington deposited the papers Jackson had given him with the
Secretary of State, Timothy Pickering. They consisted of three volumes,—the
journal of the convention, the journal of the proceedings of the Committee
of the Whole of the convention, and a list of yeas and nays, beside a
printed draft of the Constitution as reported August 6th, showing erasures
and amendments afterwards adopted, and the Virginia plan in different
stages of development.
In preparing the matter for publication Secretary Adams found that for
Friday, September 14, and Saturday, September 15, the journal was a mere
fragment, and Madison was applied to and completed it from his minutes.
From General B. Bloomfield, executor of the estate of David Brearley, a
delegate in the convention from New Jersey, Adams obtained a few
additional papers, and from Charles Pinckney a copy of what purported to
be the plan of a constitution submitted by him to the convention. All of
these papers, with some others, appeared in the edition of 1819, which was
a singularly accurate publication, as comparison by the present editor of
the printed page with the original papers has shown.
The Pinckney plan, as it appeared in this edition of the journal, was
incorporated by Madison into his record, as he had not secured a copy of
it when the convention was sitting. But the draft furnished to Secretary
Adams in 1818, and the plan presented by Pinckney to the convention in
1787 were not identical, as Madison conclusively proved in his note to his
journal, in his letter to Jared Sparks of November 25, 1831, and in
several other letters, in all of which he showed that the draft did not
agree in several important respects with Pinckney's own votes and
motions in the convention, and
[pg xiii]
that there were important
discrepancies between it and Pinckney's
Observations on the Plan of
Government
, a pamphlet printed shortly after the convention adjourned.
[6]
[6]
See P. L. Ford's
Pamphlets
on the Constitution
, 419.
It is, indeed, inconceivable that the convention should have incorporated
into the constitution so many of the provisions of the Pinckney draft, and
that at the same time so little reference should have been made to it in
the course of the debates; and it is equally extraordinary that the
contemporaries of Pinckney did not accord to him the chief paternity of
the Constitution, which honor would have belonged to him if the draft he
sent to Mr. Adams in 1818 had been the one he actually offered the
convention in the first week of its session. The editor has made a careful
examination of the original manuscripts in the case. They consist (1) of
Mr. Pinckney's letter to Mr. Adams of December 12, 1818, written from
Winyaw, S. C., while Pinckney was temporarily absent from Charleston,
acknowledging Mr. Adams's request for the draft, (2) his letter of
December 30, written from Charleston, transmitting the draft, and (3) the
draft. The penmanship of all three papers is contemporaneous, and the
letter of December 30 and the draft were written with the same pen and
ink. This may possibly admit of a difference of opinion, because the draft
is in a somewhat larger chirography than the letter, having been, as
befitted its importance, written more carefully. But the letter and the
draft are written upon the same paper, and this paper was not made when
the convention sat in 1787. There are several sheets of the draft and one
of the letter, and all bear the same water-mark—"Russell & Co.
1797." The draft cannot, therefore, claim to be the original Pinckney
plan, and was palpably made for the occasion, from
[pg xiv]
Mr. Pinckney's
original notes doubtless, aided and modified by a copy of the Constitution
itself. Thirty years had elapsed since the close of the Constitutional
Convention when the draft was compiled, and its incorrectness is not a
circumstance to occasion great wonder.
[7]
[7]
See p. 19, n.
Correspondence on the subject of the convention, written while it was in
session, was not extensive, but some unpublished letters throwing light
upon contemporaneous opinion have been found and are quoted in the notes.
The editor desires to record his obligation for assistance in preparing
these volumes to his friend, Montgomery Blair, Esq., of Silver Spring, Md.
Gaillard Hunt.
Cherry Hill Farm, Va.,
September, 1902.
[pg xv]
CHRONOLOGY OF JAMES MADISON.
1787.
1787.
May 6-25 Prepares the "Virginia plan" in conjunction with the Virginia
delegates.
May 14. Attends the first gathering of the delegates.
May 30. Moves postponement of question of representation by free
population.
Moves that congressional representation be proportioned to the
importance and size of the States.
Makes his first speech on this subject.
May 31. Advocates representation in one house by popular election.
Opposes uniting several States into one district for representation in
Senate.
Doubts practicability of enumerating powers of national legislature.
Suggests the impossibility of using force to coerce individual States.
June 1. Moves that the powers of the Executive be enumerated.
June 2. Objects to giving Congress power to remove the President upon
demand of a majority of the State legislatures.
June 4. Favors giving power to more than a majority of the national
legislature to overrule an Executive negative of a law.
June 5. Opposes election of judges by both branches of Congress.
Advocates submission of constitution to conventions of the people.
Favors inferior judicial tribunals.
[pg xvi]
June 6. Speaks for popular representation in the House.
Seconds motion to include a portion of the Judiciary with the Executive
in revisionary power over laws.
June 7. Speaks for proportional representation in both houses of Congress.
June 8. Seconds motion to give Congress power to negative State laws.
Suggests temporary operation of urgent laws.
June 12. Seconds motion to make term of Representatives three years.
Thinks the people will follow the convention.
Favors a term of seven years for Senators.
June 13. Moves defining powers of Judiciary.
Objects to appointment of judges by whole legislature.
Thinks both houses should have right to originate money bills.
Advocates a national government and opposes the "Jersey plan."
June 21. Speaks in favor of national supremacy.
Opposes annual or biennial elections of Representatives.
June 22. Favors fixing payment of salaries by a standard.
June 23. Proposes to debar Senators from offices created or enhanced
during their term.
Speaks for the proposition.
June 25. Wishes to take up question of right of suffrage.
June 26. Speaks for a long term for Senators.
Opposes their payment by the States.
June 28. Speaks for proportional representation.
June 29. Insists that too much stress is laid on State sovereignty.
June 30. Contends against equal State representation in the Senate.
Speaks again on subject, but would preserve State rights.
July 2. Opposes submission of the question to a special committee.
July 5. Opposes compromise report of committee.
July 6. Thinks part of report need not be postponed.
July 7. Thinks question of representation ought to be settled before other
questions.
July 9. Suggests free inhabitants as basis of representation one house,
and all inhabitants as basis in the other house.
[pg xvii]
July 10. Moves increase of Representatives.
July 11. Favors representation based on population.
July 14. Urges proportional representation as necessary to protect the
smaller States.
July 17. Advocates national power of negative over State laws.
Thinks the branches of government should be kept separate.
Thinks monarchy likely to follow instability.
Thinks there should be provision for interregnum between adoption and
operation of constitution.
Moves national guarantee of States against domestic violence.
July 18. Seconds motion forbidding a State to form any but a republican
government.
[pg 1]
JOURNAL OF THE CONSTITUTIONAL CONVENTION OF 1787.
Monday May 14
th
1787 was the day fixed for the meeting of the
deputies in Convention for revising the federal System of Government. On
that day a small number only had assembled. Seven States were not convened
till,
Friday 25 of May, when the following members appeared to wit:
From
Massachusetts
, Rufus King.
N. York
, Robert Yates,
[8]
Alex
Hamilton.
N. Jersey
David Brearly, William Churchill Houston, William Patterson.
Pennsylvania
Robert Morris, Thomas Fitzsimons, James Wilson, Governeur Morris.
Delaware
George Read, Richard Basset,
[9]
Jacob Broome.
Virginia
George Washington, Edmund Randolph, John Blair,
[10]
James
[pg 2]
Madison, George Mason, George Wythe, James McClurg.
N. Carolina
Alexander Martin, William Richardson Davie, Richard Dobbs Spaight, Hugh
Williamson.
S. Carolina
, John Rutlidge, Charles Cotesworth
Pinckney, Charles Pinckney, Pierce Butler.
Georgia
, William Few.
[11]
[8]
William Pierce, delegate from
Georgia, made an estimate of each member of the convention, the only
contemporary estimate thus far brought to light. Yates did not speak
in the Convention.
"M
Yates is said to be an able Judge. He is a Man of great
legal abilities, but not distinguished as an Orator. Some of his
Enemies say he is an anti-federal Man, but I discovered no such
disposition in him. He is about 45 years old, and enjoys a great share
of health."—Pierce's Notes,
Am. Hist. Rev.
, iii.,
327. For more about Pierce's Notes, see p. 45, n.
[9]
"M
Bassett is a
religious enthusiast, lately turned Methodist, and serves his Country
because it is the will of the people that he should do so. He is a Man
of plain sense, and has modesty enough to hold his Tongue. He is
Gentlemanly Man and is in high estimation among the Methodists. Mr.
Bassett is about 36 years old."—Pierce's Notes,
Id.
iii., 330. He did not speak in the Convention.
[10]
"Mr. Blair
is one of the most respectable Men in Virginia, both on account of his
Family as well as fortune. He is one of the Judges of the Supreme
Court in Virginia, and acknowledged to have a very extensive knowledge
of the Laws. M
Blair is however, no Orator, but his good
sense, and most excellent principles, compensate for other
deficiencies. He is about 50 years of age."—Pierce's Notes,
Am. Hist. Rev.
, iii., 331. He did not speak in the Convention.
[11]
"M
Few possesses a strong natural Genius, and from application has
acquired some knowledge of legal matters;—he practises at the
bar of Georgia, and speaks tolerably well in the Legislature. He has
been twice a Member of Congress, and served in that capacity with
fidelity to his State, and honor to himself. Mr. Few is about 35 years
of age."—Pierce's Notes,
Id.
, iii., 333. He did not
speak in the Convention.
The credentials of Connecticut and Maryland required but one deputy to
represent the state; of New York, South Carolina, Georgia, and New
Hampshire, two deputies; of Massachusetts, New Jersey, Delaware,
Virginia, and North Carolina, three; of Pennsylvania, four.—
Journal
of the Federal Convention
, 16
et seq.
Documentary
History of the Constitution
, i., 10
et seq.
Robert Morris
[12]
informed the members
assembled that by the instruction & in behalf, of the deputation of
Pen
he proposed George Washington, Esq
late
Commander in chief for president of the Convention. M
Jn
Rutlidge seconded the motion; expressing his confidence that the choice
would be unanimous, and observing that the presence
[pg 3]
of Gen
Washington forbade any observations on the occasion which might otherwise
be proper.
[12]
"Robert
Morris is a merchant of great eminence and wealth; an able Financier,
and a worthy Patriot. He has an understanding equal to any public
object, and possesses an energy of mind that few Men can boast of.
Although he is not learned, yet he is as great as those who are. I am
told that when he speaks in the Assembly of Pennsylvania, that he
bears down all before him. What could have been his reason for not
Speaking in the Convention I know not,—but he never once spoke
on any point. This Gentleman is about 50 years old."—Pierce's
Notes,
Am. Hist: Rev.
, iii., 328.
General Washington
[13]
was accordingly
unanimously elected by ballot, and conducted to the Chair by M
R. Morris and M
Rutlidge; from which in a very emphatic manner
he thanked the Convention for the honor they had conferred on him,
reminded them of the novelty of the scene of business in which he was to
act, lamented his want of better qualifications, and claimed the
indulgence of the House towards the involuntary errors which his
inexperience might occasion.
[13]
"Gen
Washington is well known as the Commander in chief of the late
American Army. Having conducted these States to independence and
peace, he now appears to assist in framing a Government to make the
People happy. Like Gustavus Vasa, he may be said to be the deliverer
of his Country;—like Peter the great he appears as the
politician and the States-man; and like Cincinnatus he returned to his
farm perfectly contented with being only a plain Citizen, after
enjoying the highest honor of the confederacy,—and now only
seeks for the approbation of his Country-men by being virtuous and
useful. The General was conducted to the Chair as President of the
Convention by the unanimous voice of its Members. He is in the 52
year of his age."—Pierce's Notes,
Am. Hist. Rev.
iii., 331.
(The nomination came with particular grace from Pen͠na, as Doc
Franklin alone could have been thought of as a competitor. The Doc
was himself to have made the nomination of General Washington, but the
state of the weather and of his health confined him to his house.)
Wilson
[14]
moved that a Secretary be
appointed, and nominated M
Temple Franklin.
[14]
"Mr.
Wilson ranks among the foremost in legal and political knowledge. He
has joined to a fine genius all that can set him off and show him to
advantage. He is well acquainted with Man, and understands all the
passions that influence him. Government seems to have been his
peculiar Study, all the political institutions of the World he knows
in detail, and can trace the causes and effects of every revolution
from the earliest stages of the Greecian commonwealth down to the
present time. No man is more clear, copious, and comprehensive than
Mr. Wilson, yet he is no great Orator. He draws the attention not by
the charm of his eloquence, but by the force of his reasoning. He is
about 45 years old."—Pierce's Notes,
Am. Hist. Rev.
iii., 329.
[pg 4]
Col Hamilton
[15]
nominated Major Jackson.
[15]
"Col
Hamilton is deservedly celebrated for his talents. He is a
practitioner of the Law, and reputed to be a finished Scholar. To a
clear and strong judgment he unites the ornaments of fancy, and whilst
he is able, convincing, and engaging in his eloquence the Heart and
Head sympathize in approving him. Yet there is something too feeble in
his voice to be equal to the strains of oratory;—it is my
opinion he is rather a convincing Speaker, that [than] a blazing
Orator. Col
Hamilton requires time to think,—he
enquires into every part of his subject with the searchings of
phylosophy, and when he comes forward he comes highly charged with
interesting matter, there is no skimming over the surface of a subject
with him, he must sink to the bottom to see what foundation it rests
on.—His language is not always equal, sometimes didactic like
Bolingbroke's, at others light and tripping like Stern's. His
eloquence is not so defusive as to trifle with the senses, but he
rambles just enough to strike and keep up the attention. He is about
33 years old, of small stature, and lean. His manners are tinctured
with stiffness, and sometimes with a degree of vanity that is highly
disagreable."—Pierce's Notes,
Id.
, iii., 327.
On the ballot Maj
Jackson had 5 votes & M
Franklin 2 votes.
On reading the credentials of the deputies it was noticed that those from
Delaware were prohibited from changing the Article in the Confederation
establishing an equality of votes among the States.
[16]
[16]
" ... So
also and Provided, that such Alterations or further Provisions, or any
of them, do not extend to that part of the Fifth Article of the
Confederation of the said States, finally ratified on the first day
March, in the Year One thousand seven hundred and eighty one, which
declares that 'In determining Questions in the United States in
Congress Assembled each State shall have one Vote.'"—
Documentary
History of the Constitution
(Dept. of State), i., 24.
The appointment of a Committee, consisting of Mess
rs
Wythe,
Hamilton & C. Pinckney, on the motion of Mr. Pinckney, to prepare
standing rules & orders was the only remaining step taken on this day.
[pg 5]
Monday May 28.
——
From Mass
ts
Nat: Gorham & Caleb Strong. From Connecticut
Oliver Elseworth. From Delaware, Gunning Bedford. From Maryland James M
Henry.
From Penn
B. Franklin, George Clymer, Th
Mifflin
& Jared Ingersol, took their seats.
[17]
[17]
"Entre
nous. I believe the Eastern people have taken ground they will not
depart from respecting the Convention.—One legislature composed
of a lower-house triennially elected and an
Executive & Senate
for a good number of years.—I shall see Gerry & Johnson, as
they pass & may perhaps give you a hint."—William Grayson to
Madison, New York, May 24, 1787,
Mad. MSS.
Wythe
[18]
from the Committee for
preparing rules made a report which employed the deliberations of this
day.
[18]
"M
Wythe is the famous Professor of Law at the University of William and
Mary. He is confessedly one of the most learned legal Characters of
the present age. From his close attention to the study of general
learning he has acquired a compleat knowledge of the dead languages
and all the sciences. He is remarked for his exemplary life, and
universally esteemed for his good principles. No Man it is said
understands the history of Government better than M
Wythe,—nor
any one who understands the fluctuating condition to which all
societies are liable better than he does, yet from his too favorable
opinion of Men, he is no great politician. He is a neat and pleasing
Speaker, and a most correct and able Writer. Mr. Wythe is about 55
years of age."—Pierce's Notes,
Am. Hist. Rev.
, iii.,
331.
King
[19]
objected to one of the
rules in the Report authorizing any member to call for the yeas & nays
and have them entered on the minutes. He urged that as the acts of the
Convention were not to bind the Constituents, it was unnecessary to
exhibit this evidence of the votes; and improper as changes of opinion
would be frequent in the course of the business & would fill the
minutes with contradictions.
[19]
"M
King is a Man much distinguished for his eloquence and great
parliamentary talents. He was educated in Massachusetts, and is said
to have good classical as well as legal knowledge. He has served for
three years in the Congress of the United States with great and
deserved applause, and is at this time high in the confidence and
approbation of his Country-men. This Gentleman is about thirty three
years of age, about five feet ten inches high, well formed, an
handsome face, with a strong expressive Eye, and a sweet high toned
voice. In his public speaking there is something peculiarly strong and
rich in his expression, clear, and convincing in his arguments, rapid
and irresistible at times in his eloquence but he is not always equal.
His action is natural, swimming, and graceful, but there is a rudeness
of manner sometimes accompanying it. But take him
tout en semble
he may with propriety be ranked among the luminaries of the present
Age."—Pierce's Notes,
Am. Hist. Rev.
, iii., 325.
[pg 6]
Col. Mason
[20]
seconded the objection;
adding that such a record of the opinions of members would be an obstacle
to a change of them on conviction; and in case of its being hereafter
promulged must furnish handles to the adversaries of the Result of the
Meeting.
[20]
"Mr. Mason
is a Gentleman of remarkable strong powers, and possesses a clear and
copious understanding. He is able and convincing in debate, steady and
firm in his principles, and undoubtedly one of the best politicians in
America. M
Mason is about 60 years old, with a fine strong
constitution."—Pierce's Notes,
Id.
, iii., 331.
The proposed rule was rejected nem. contrad certe. The standing rules
[21]
agreed to were as follows:
[22]
[21]
Previous
to the arrival of a majority of the States, the rule by which they
ought to vote in the Convention had been made a subject of
conversation among the members present. It was pressed by Governeur
Morris and favored by Robert Morris and others from Pennsylvania, that
the large States should unite in firmly refusing to the small states
an equal vote, as unreasonable, and as enabling the small States to
negative every good system of Government, which must, in the nature of
things, be founded on a violation of that equality. The members from
Virginia, conceiving that such an attempt might beget fatal
altercations between the large & small States, and that it would
be easier to prevail on the latter, in the course of the
deliberations, to give up their equality for the sake of an effective
Government, than on taking the field of discussion to disarm
themselves of the right & thereby throw themselves on the mercy of
the larger States, discountenanced and stifled the project.—Madison's
Note.
[22]
In the MS. Madison
adds: "[See the Journal & copy here the printed rules]," and they
were copied by him from the
Journal of the Federal Convention
1819
).
They have been compared with the MS. journal and found to be correct.
[pg 7]
Viz.
A House to do business shall consist of the Deputies of not less than
seven States; and all questions shall be decided by the greater number of
these which shall be fully represented; but a less number than seven may
adjourn from day to day.
Immediately after the President shall have taken the chair, and the
members their seats, the minutes of the preceding day shall be read by the
Secretary.
Every member, rising to speak, shall address the President; and whilst he
shall be speaking, none shall pass between them, or hold discourse with
another, or read a book, pamphlet or paper, printed or manuscript—and
of two members rising at the same time, the President shall name him who
shall be first heard.
A member shall not speak oftener than twice, without special leave, upon
the same question; and not the second time, before every other, who had
been silent, shall have been heard, if he choose to speak upon the
subject.
A motion made and seconded, shall be repeated, and if written, as it shall
be when any member shall so require, read aloud by the Secretary, before
it shall be debated; and may be withdrawn at any time, before the vote
upon it shall have been declared.
Orders of the day shall be read next after the minutes, and either
discussed or postponed, before any other business shall be introduced.
When a debate shall arise upon a question, no motion, other than to amend
the question, to commit it, or to postpone the debate shall be received.
[23]
A question which is complicated, shall, at the
[pg 8]
request of any member, be divided, and put separately on the propositions
of which it is compounded.
[23]
An
undecided line is drawn through the page in the MS. from here to
the end of the rules; but not, as it would appear, to strike them out,
as they were actually adopted by the Convention.
The determination of a question, altho' fully debated, shall be
postponed, if the deputies of any State desire it until the next day.
A writing which contains any matter brought on to be considered, shall be
read once throughout for information, then by paragraphs to be debated,
and again, with the amendments, if any, made on the second reading; and
afterwards the question shall be put on the whole, amended, or approved in
its original form, as the case shall be.
Committees shall be appointed by ballot; and the members who have the
greatest number of ballots, altho' not a majority of the votes
present, shall be the Committee. When two or more members have an equal
number of votes, the member standing first on the list in the order of
taking down the ballots, shall be preferred.
A member may be called to order by any other member, as well as by the
President; and may be allowed to explain his conduct or expressions
supposed to be reprehensible. And all questions of order shall be decided
by the President without appeal or debate.
Upon a question to adjourn for the day, which may be made at any time, if
it be seconded, the question shall be put without a debate.
When the House shall adjourn, every member shall stand in his place, until
the President pass him.
A letter from sundry persons of the State of Rho. Island addressed to the
Honorable The Chairman of the General Convention was presented to the
Chair by Mr. Gov
Morris,
[24]
and being read, was
[pg 9]
ordered to lie on the table for further consideration.
[25]
[24]
"M
Governeur Morris is one of those Genius's in whom every species of
talents combine to render him conspicuous and flourishing in public
debate:—He winds through all the mazes of rhetoric, and throws
around him such a glare that he charms, captivates, and leads away the
senses of all who hear him. With an infinite streach of fancy he
brings to view things when he is engaged in deep argumentation, that
render all the labor of reasoning easy and pleasing. But with all
these powers he is fickle and inconstant,—never pursuing one
train of thinking,—nor ever regular. He has gone through a very
extensive course of reading, and is acquainted with all the sciences.
No Man has more wit,—nor can any one engage the attention more
than M
Morris. He was bred to the Law, but I am told he
disliked the profession, and turned Merchant. He is engaged in some
great mercantile matters with his namesake, M
Rob
Morris. This Gentleman is about 38 years old, he has been unfortunate
in losing one of his Legs, and getting all the flesh taken off his
right arm by a scald, when a youth."—Pierce's Notes,
Am.
Hist. Rev.
, iii., 329.
[25]
Newport
June 18th 1787
"Sir—
"The inclosed address, of which I presume your Excellency has
received a duplicate, was returned to me from New York after my
arrival in this State. I flattered myself that our Legislature,
which convened on monday last, would have receded from the
resolution therein refer'd to, and have complied with the
recommendation of Congress in sending deligates to the federal
convention. The upper house, or Governor, & Council, embraced
the measure, but it was negatived in the house of Assembly by a
large majority, notwithstanding the greatest exertions were made to
support it.
"Being disappointed in their expectations, the minority in the
administration and all the worthy citizens of this State, whose
minds are well informd regreting the peculiarities of their
Situation place their fullest confidence in the wisdom &
moderation of the national council, and indulge the warmest hopes of
being favorably consider'd in their deliberations. From these
deliberations they anticipate a political System which must finally
be adopted & from which will result the Safety, the honour,
& the happiness of the United States.
"Permit me, Sir, to observe, that the measures of our present
Legislature do not exhibit the real character of the State. They are
equally reprobated, & abhored by Gentlemen of the learned
professions, by the whole mercantile body, & by most of the
respectable farmers and mechanicks. The majority of the
administration is composed of a licentious number of men, destitute
of education, and many of them, Void of principle. From anarchy and
confusion they derive their temporary consequence, and this they
endeavor to prolong by debauching the minds of the common people,
whose attention is wholly directed to the Abolition of debts both
public & private. With these are associated the disaffected of
every description, particularly those who were unfriendly during the
war. Their paper money System, founded in oppression & fraud,
they are determined to Support at every hazard. And rather than
relinquish their favorite pursuit they trample upon the most sacred
obligations. As a proof of this they refused to comply with a
requisition of Congress for repealing all laws repugnant to the
treaty of peace with Great Britain, and urged as their principal
reason, that it would be calling in question the propriety of their
former measures.
"These evils may be attributed, partly to the extreme freedom of our
own constitution, and partly to the want of energy in the federal
Union: And it is greatly to be apprehended that they cannot Speedily
be removed but by uncommon and very serious exertions. It is
fortunate however that the wealth and resources of this State are
chiefly in possion of the well Affected, & that they are
intirely devoted to the public good.
"I have the honor of being Sir,
"with the greatest Veneration & esteem,
"Your excellencys very obedient &
"most humble servant—
["
J. M. Varnum
.]
"His excellency
Gen
Washington
."
The letter was inadvertently unsigned, but it was well known to come
from General Varnum. The enclosure was as follows:
Providence
, May 11. 1787.
Gentlemen
"Since the Legislature of this State have finally declined sending
Delegates to Meet you in Convention for the purposes mentioned in
the Resolve of Congress of the 21
st
February 1787, the
Merchants Tradesmen and others of this place, deeply affected with
the evils of the present unhappy times, have thought proper to
Communicate in writing their approbation of your Meeting, And their
regret that it will fall short of a Compleat Representation of the
Federal Union.—
"The failure of this State was owing to the Nonconcurrence of the
Upper House of Assembly with a Vote passed in the Lower House, for
appointing Delegates to attend the said Convention, at their Session
holden at Newport on the first Wednesday of the present Month.—
"It is the general Opinion here and we believe of the well informed
throughout this State, that full power for the Regulation of the
Commerce of the United States, both Foreign & Domestick ought to
be vested in the National Council.
"And that Effectual Arrangements should also be made for giving
Operation to the present powers of Congress in their Requisitions
upon the States for National purposes.—
"As the Object of this Letter is chiefly to prevent any impressions
unfavorable to the Commercial Interest of this State, from taking
place in our Sister States from the Circumstance of our being
unrepresented in the present National Convention, we shall not
presume to enter into any detail of the objects we hope your
deliberations will embrace and provide for being convinced they will
be such as have a tendency to strengthen the Union, promote
Commerce, increase the power & Establish the Credit of the
United States.
"The result of your deliberations tending to these desireable
purposes we still hope may finally be Approved and Adopted by this
State, for which we pledge our Influence and best exertions.—
"In behalf of the Merchants, Tradesmen &c
"We have the Honour to be with perfect
Consideration & Respect
"Your
most Obedient &
"Most Humble
Servant's
John Brown
Jabez Bowen
Tho
Lloyd Halsey
Nicho
Brown
Jos. Nightingale
John Jenckes
Levi Hall
Welcome Arnold
} Comtee.
Philip Allen
William Russell
Paul Allen
Jeremiah Olmy
William Barton
"The Hon
ble
the Chairman of the General Convention
Philadelphia
Const. MSS.
Both letters are printed in the
Documentary History of the
Constitution
, i., 277 and 275.
[pg 10]
Butler moved that the House provide ag
st
interruption of
business by absence of members,
[26]
and against licentious
publications of their proceedings—to which was added by—M
Spaight
[27]
—a motion
[pg 12]
to
provide that on the one hand the House might not be precluded by a vote
upon any question, from revising the subject matter of it, When they see
cause, nor, on the other hand, be led too hastily to rescind a decision,
which was the result of mature discussion.—Whereupon it was ordered
that these motions be referred for the consideration of the Committee
appointed to draw up the standing rules and that the Committee make report
thereon.
[26]
"Mr.
Butler is a character much respected for the many excellent virtues
which he possesses. But as a politician or an Orator, he has no
pretensions to either. He is a Gentleman of fortune, and takes rank
among the first in South Carolina. He has been appointed to Congress,
and is now a Member of the Legislature of South Carolina. M
Butler is about 40 years of age; an Irishman by birth."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 333.
[27]
"Mr.
Spaight is a worthy Man, of some abilities, and fortune. Without
possessing a Genius to render him brilliant, he is able to discharge
any public trust that his Country may repose in him. He is about 31
years of age."—Pierce's Notes,
Id.
, iii., 332.
Adj
till tomorrow 10. OClock.
Tuesday May 29.
John Dickenson and Elbridge Gerry, the former from Delaware, the latter
from Mass
ts
took their seats. The following rules were added,
on the report of M
Wythe from the Committee—
That no member be absent from the House, so as to interrupt the
representation of the State, without leave.
That Committees do not sit whilst the House shall be or ought to be,
sitting.
That no copy be taken of any entry on the journal during the sitting of
the House without leave of the House.
That members only be permitted to inspect the journal.
That nothing spoken in the House be printed, or otherwise published or
communicated without leave.
That a motion to reconsider a matter which has been determined by a
majority, may be made, with leave unanimously given, on the same day on
which the vote passed; but otherwise not without one day's previous
notice: in which last case, if the House agree to the reconsideration,
some future day shall be assigned for that purpose.
[pg 13]
C. Pinkney
[28]
moved that a Committee be
appointed to superintend the Minutes.
[28]
"Mr.
Charles Pinckney is a young Gentleman of the most promising talents.
He is, altho' only 24 y
of age, in possession of a
very great variety of knowledge. Government, Law, History, and
Phylosophy are his favorite studies, but he is intimately acquainted
with every species of polite learning, and has a spirit of application
and industry beyond most Men. He speaks with great neatness and
perspicuity, and treats every subject as fully, without running into
prolixity, as it requires. He has been a Member of Congress, and
served in that Body with ability and eclat."—Pierce's Notes,
Am. Hist. Rev.
, iii., 333.
Gov
Morris objected to it. The entry of the
proceedings of the Convention belonged to the Secretary as their impartial
officer. A committee might have an interest & bias in moulding the
entry according to their opinions and wishes.
The motion was negatived, 5 noes, 4 ays.
Mr. Randolph
[29]
then opened the main
business.
[30]
[29]
"Mr.
Randolph is Governor of Virginia,—a young Gentleman in whom
unite all the accomplishments of the Scholar, and the Statesman. He
came forward with the postulata, or first principles, on which the
Convention acted, and he supported them with a force of eloquence and
reasoning that did him great honor. He has a most harmonious voice, a
fine person and striking manners. Mr. Randolph is about 32 years of
age."—Pierce's Notes,
Id.
, iii., 332.
[30]
In the MS. in
Randolph's hand: "[here insert his speech including his
resolutions]." The speech also is in Randolph's hand, having been
furnished by him.
He expressed his regret, that it should fall to him, rather than those,
who were of longer standing in life and political experience, to open the
great subject of their mission. But, as the convention had originated from
Virginia, and his colleagues supposed that some proposition was expected
from them, they had imposed this task on him.
He then commented on the difficulty of the crisis, and the necessity of
preventing the fulfilment of the prophecies of the American downfal.
He observed that in revising the fœderal system
[pg 14]
we ought to inquire 1.
into the properties, which such a government ought to possess, 2. the
defects of the confederation, 3. the danger of our situation & 4. the
remedy.
1. The Character of such a government ought to secure 1. against foreign
invasion: 2. against dissensions between members of the Union, or
seditions in particular States: 3. to procure to the several States
various blessings, of which an isolated situation was incapable: 4. to be
able to defend itself against encroachment: & 5. to be paramount to
the state constitutions.
2. In speaking of the defects of the confederation he professed a high
respect for its authors, and considered them as having done all that
patriots could do, in the then infancy of the science, of constitutions,
& of confederacies,—when the inefficiency of requisitions was
unknown—no commercial discord had arisen among any States—no
rebellion had appeared as in Mass
ts
—foreign debts had not
become urgent—the havoc of paper money had not been foreseen—treaties
had not been violated—and perhaps nothing better could be obtained
from the jealousy of the states with regard to their sovereignty.
He then proceeded to enumerate the defects. 1. that the confederation
produced no security against foreign invasion; congress not being
permitted to prevent a war nor to support it by their own authority—Of
this he cited many examples; most of which tended to shew, that they could
not cause infractions of treaties or of the law of nations to be punished:
that particular states might by their conduct provoke war without
controul; and that neither militia nor draughts being fit for defence on
such occasions, enlistments only could be successful, and these could not
be executed without money.
2, that the fœderal government could not check
[pg 15]
the quarrels between
states, nor a rebellion in any, not having constitutional power nor means
to interpose according to the exigency.
3, that there were many advantages, which the U. S. might acquire,
which were not attainable under the confederation—such as a
productive impost—counteraction of the commercial regulations of
other nations—pushing of commerce ad libitum,—&c &c.
4, that the fœderal government could not defend itself against
encroachments from the states.
5, that it was not even paramount to the state constitutions, ratified as
it was in many of the states.
3. He next reviewed the danger of our situation, appealed to the sense of
the best friends of the U. S. the prospect of anarchy from the laxity of
government every where; and to other considerations.
4. He then proceeded to the remedy; the basis of which he said must be the
republican principle.
He proposed as conformable to his ideas the following resolutions, which
he explained one by one.
1. Resolved that the articles of Confederation ought to be so corrected
& enlarged as to accomplish the objects proposed by their institution;
namely, "common defence, security of liberty, and general welfare."
2. Res
therefore that the rights of suffrage in the National
Legislature ought to be proportioned to the Quotas of contribution, or to
the number of free inhabitants, as the one or the other rule may seem best
in different cases.
3. Res
that the National Legislature ought to consist of two
branches.
4. Res
that the members of the first branch of the National
Legislature ought to be elected by the people of the several States every
—— for the term of ——; to be of the age of ——
years at least, to receive liberal stipends by which they may be
compensated for the devotion of their time to the
[pg 16]
public service; to be
ineligible to any office established by a particular State, or under the
authority of the United States, except those peculiarly belong to the
functions of the first branch, during the term of service, and for the
space of —— after its expiration; to be incapable of
re-election for the space of —— after the expiration of their
term of service, and to be subject to recall.
5. Resol
that the members of the second branch of the National
Legislature ought to be elected by those of the first, out of a proper
number of persons nominated by the individual Legislatures, to be of the
age of —— years at least; to hold their offices for a term
sufficient to ensure their independency; to receive liberal stipends, by
which they may be compensated for the devotion of their time to the public
service; and to be ineligible to any office established by a particular
State, or under the authority of the United States, except those
peculiarly belonging to the functions of the second branch, during the
term of service; and for the space of —— after the expiration
thereof.
6. Resolved that each branch ought to possess the right of originating
Acts; that the National Legislature ought to be empowered to enjoy the
Legislative Rights vested in Congress by the Confederation & moreover
to legislate in all cases to which the separate States are incompetent, or
in which the harmony of the United States may be interrupted by the
exercise of individual Legislation; to negative all laws passed by the
several States contravening in the opinion of the National Legislature the
articles of Union; and to call forth the force of the Union ag
st
any member of the Union failing to fulfil its duty under the articles
thereof.
7. Res
that a National Executive be instituted; to be chosen
by the National Legislature for the term of —— years, to
receive punctually at stated
[pg 17]
times, a fixed compensation for the
services rendered, in which no increase or diminution shall be made so as
to affect the Magistracy, existing at the time of increase or diminution,
and to be ineligible a second time; and that besides a general authority
to execute the national laws, it ought to enjoy the Executive rights
vested in Congress by the Confederation.
8. Res
that the Executive and a convenient number of the
National Judiciary, ought to compose a Council of revision with authority
to examine every act of the National Legislature before it shall operate,
& every act of a particular Legislature before a Negative thereon
shall be final; and that the dissent of the said Council shall amount to a
rejection, unless the Act of the National Legislature be again passed, or
that of a particular Legislature be again negatived by —— of
the members of each branch.
9. Res
that a National Judiciary be established to consist of
one or more supreme tribunals, and of inferior tribunals to be chosen by
the National Legislature, to hold their offices during good behaviour; and
to receive punctually at stated times fixed compensation for their
services, in which no increase or diminution shall be made so as to affect
the persons actually in office at the time of such increase or diminution.
That the jurisdiction of the inferior tribunals shall be to hear &
determine in the first instance, and of the supreme tribunal to hear and
determine in the dernier resort, all Piracies & felonies on the high
seas, captures from an enemy: cases in which foreigners or Citizens of
other States applying to such jurisdictions may be interested, or which
respect the collection of the National revenues; impeachments of any
national officers, and questions which may involve the national peace and
harmony.
10. Resolv
that provision ought to be made for the admission
of States lawfully arising within the
[pg 18]
limits of the United
States, whether from a voluntary junction of Government & Territory or
otherwise, with the consent of a number of voices in the National
Legislature less than the whole.
11. Res
that a Republican Government & the territory of
each State, except in the instance of a voluntary junction of Government
& territory, ought to be guarantied by the United States to each
State.
12. Res
that provision ought to be made for the continuance of
Congress and their authorities and privileges, until a given day after the
reform of the articles of Union shall be adopted, and for the completion
of all their engagements.
13. Res
that provision ought to be made for the amendment of
the Articles of Union whensoever it shall seem necessary, and that the
assent of the National Legislature ought not to be required thereto.
14. Res
that the Legislative Executive & Judiciary powers
within the several States ought to be bound by oath to support the
articles of Union.
15. Res
that the amendments which shall be offered to the
Confederation, by the Convention ought at a proper time, or times, after
the approbation of Congress to be submitted to an assembly or assemblies
of Representatives, recommended by the several Legislatures to be
expressly chosen by the people to consider & decide thereon.
He concluded with an exhortation, not to suffer the present opportunity of
establishing general peace, harmony, happiness and liberty in the U. S. to
pass away unimproved.
[31]
[31]
This
abstract of the speech was furnished to J. M. by M
Randolph and is in his handwriting. As a report of it from him had
been relied on, it was omitted by J. M.—
Madison's Note.
The fifteen resolutions, constituting the "Virginia Plan," are in
Madison's handwriting.
It was then Resolved—That the House will tomorrow resolve itself
into a Committee of the Whole
[pg 19]
House to consider of the state of the
American Union—and that the propositions moved by M
Randolph be referred to the said Committee.
Charles Pinkney laid before the House the draft of a federal
Government which he had prepared, to be agreed upon between the free and
independent States of America.
[32]
—M
P.
plan ordered that the same be referred to the Committee of the Whole
appointed to consider the state of the American Union.
[33]
[32]
Robert
Yates, delegate from New York, kept notes of the proceedings of the
Convention, until he left July 5th, with his colleague, John Lansing.
They wrote a joint letter to Governor Clinton afterwards, giving their
reasons: "We were not present at the completion of the new
constitution; but before we left the convention, its principles were
so well established as to convince us, that no alteration was to be
expected to conform it to our ideas of expediency and safety."—
Secret
Proceedings of the Federal Convention
, 10. Yates's notes are
quoted here, whenever they are at variance with Madison's. He
gives Pinckney's motion as follows: "Mr. C. Pinckney, a member
from South Carolina, then added, that he had reduced his ideas of a
new government to a system, which he read, and confessed that it was
grounded on the same principle as of the above [the Randolph]
resolutions."—
Id.
, 97.
[33]
Charles
Pinckney wrote to John Quincy Adams:
Wingaw near Georgetown
December 12 1818
Sir
"I have just had the honour to receive your favour—Being at
present absent from Charleston on a visit to my planting interest in
this neighbourhood I shall in consequence of your letter shorten my
stay here considerably & return to Town for the purpose of
complying with your request as soon as possible—From an
inspection of my old papers not long ago I know it was then easily
in my power to have complied with your request—I still hope it
is & as soon as I return to my residence in Charleston will
again, or as quickly as I can write you on it to prevent delay.
"The Draught of the Constitution proposed by me was divided into a
number of articles & was in complete detail—the
resolutions offered by M
Randolph were merely general
ones & as far as I recollect they were both referred to the same
Committee.
"With great respect & esteem" &c.
Dept. of State MSS.
, Miscellaneous
Letters.
Three weeks later he wrote again:
Sir
"On my return to this City as I promised I examined carefully all
the numerous notes & papers which I had retained relating to the
federal Convention—among them I found several rough draughts
of the Constitution I proposed to the Convention—although they
differed in some measure from each other in the wording &
arrangement of the articles—yet they were all substantially
the same—they all proceeded upon the idea of throwing out of
view the attempt to amend the existing Confederation (then a very
favorite idea of a number) & proceeding de novo—of a
Division of the Powers of Government into legislative executive
& judicial & of making the Government to operate directly
upon the People & not upon the States. My Plan was substantially
adopted in the sequel except as to the Senate & giving more
power to the Executive than I intended—the force of vote which
the small & middling states had in the Convention prevented our
obtaining a proportional representation in more than one branch
& the great powers given to the President were never intended to
have been given to him while the Convention continued in that
patient & coolly deliberative situation in which they had been
for nearly the whole of the preceding five months of their session
nor was it until within the last week or ten days that almost the
whole of the Executive Department was altered—I can assure you
as a fact that for more than Four months & a half out of five
the power of exclusively making treaties, appointing for the
Ministers & judges of the Supreme Court was given to the Senate
after numerous debates & consideration of the subject both in
Committee of the whole & in the house—this I not only aver
but can prove by printed Documents in my possession to have been the
case—& should I ever have the pleasure to see you &
converse on the subject will state to you some things relative to
this business that may be new & perhaps surprising to you—the
veil of secrecy from the Proceedings of the Convention being removed
by Congress & but very few of the members alive would make
disclosures now of the secrets there acted less improper than before—With
the aid of the journal & the numerous notes & memorandums I
have preserved should now be in my power to give a View of the
almost insuperable difficulties the Convention had to encounter
& of the conflicting opinions of the members I believe should
have attempted it had I not always understood M
Madison
intended it—he alone I believe possessed & retained more
numerous & particular notes of their proceedings than myself. I
will thank you sir to do me the honour to send me or to get the
President to direct a copy of the Journal of the Convention to be
sent me as also of the Secret Journals of Congress should it be
considered not improper in me to make the request.
"I have already informed you I have several rough draughts of the
Constitution I proposed & that they are all substantially the
same differing only in words & the arrangement of the Articles—at
the distance of nearly thirty two years it is impossible for me now
to say which of the 4 or 5 draughts I have was the one but enclosed
I send you the one I believe was it—I repeat however that they
are substantially the same differing only in form & unessentials—It
may be necessary to remark that very soon after the Convention met I
changed & avowed candidly the change of my opinion on giving the
power to Congress to revise the State Laws in certain cases & in
giving the exclusive Power to the Senate to declare War thinking it
safer to refuse the first altogether & to vest the latter in
Congress—I will thank you to acknowledge by a line the receipt
of the Draught & this.
"With very great respect & esteem
"I have the honour to be your most
"Obedient servant
Charles Pinckney
"December 30 1818
"In
Charleston."—
Const. MSS.
The plan is written upon paper of the same size as the letter, and
with the same ink. It is undoubtedly contemporaneous with the letter.
Madison wrote the following note to accompany his journal:
"The length of the Document laid before the Convention, and other
circumstances having prevented the taking of a copy at the time,
that which is here inserted was taken from the paper furnished to
the Secretary of State, and contained in the Journal of the
Convention published in 1819. On comparing the paper with the
Constitution in its final form, or in some of its Stages; and with
the propositions, and speeches of M
Pinckney in the
Convention, it would seem that considerable errour must have crept
into the paper; occasioned possibly by the loss of the Document laid
before the convention (neither that nor the Resolutions offered by M
Patterson being among the preserved papers) and by a consequent
resort for a copy to the rough draught, in which erasures and
interlineations following what passed in the convention, might be
confounded with the original text, and after a lapse of more than
thirty years, confounded also in the memory of the author.
"There is in the paper a similarity in some cases, and an identity
in others, with details, expressions, and definitions, the results
of critical discussions and modifications that can not be ascribed
to accident or anticipation.
"Examples may be noticed in Article VIII of the paper; which is
remarkable also for the circumstance, that whilst it specifies the
functions of the President, no provision is contained in the paper
for the election of such an officer, nor indeed for the appointment
of any executive magistracy; notwithstanding the evident purpose of
the author to provide an
entire
plan of a Federal Government.
"Again, in several instances where the paper corresponds with the
Constitution, it is at variance with the ideas of M
Pinckney, as decidedly expressed in his propositions, and in his
arguments, the former in the Journal of the Convention, the latter
in the report of its debates: Thus in Art: VIII of the paper,
provision is made for removing the President by impeachment; when it
appears that in the convention, July 20. he was opposed to any
impeachability of the Executive magistrate: In Art: III, it is
required that all money-bills shall originate in the first Branch of
the Legislature; which he strenuously opposed Aug: 8 and again Aug:
11: In Art: V members of each House are made ineligible to, as well
as incapable of holding, any office under the union &c. as was
the case at one Stage of the Constitution; a disqualification highly
disapproved and opposed by him Aug: 14.
"A still more conclusive evidence of errour in the paper is seen in
Art: III, which provides, as the Constitution does, that the first
Branch of the Legislature shall be chosen by the people of the
several States; whilst it appears that on the 6
th
of
June, a few days only after the Draft was laid before the
convention, its author opposed that mode of choice, urging &
proposing in place of it, an election by the Legislatures of the
several States.
"The remarks here made tho' not material in themselves, were due
to the authenticity and accuracy aimed at, in this Record of the
proceedings of a Publick Body, so much an object, sometimes, of
curious research, as at all times, of profound interest."—
Mad.
MSS.
This note, as given in Gilpin's
Madison Papers
1840
),
is freely edited. The Pinckney plan is given here as Pinckney sent it
to Adams. Chief-Justice Charles C. Nott, of the U. S. Court of
Claims, informs the editor that correspondence with Pinckney's
descendants reveals the fact that none of the notes to which he
alludes in his letters are extant.
The letter of December 30, 1818, and plan, are printed in
The
Documentary History of the Constitution
, i., 309
et seq.
CHARLES PINCKNEY'S LETTER.
(Reduced.)
THE PINCKNEY DRAFT.
(Reduced.)
[pg 20]
We the People of the States of New Hampshire Massachusetts Rhode Island
& Providence Plantations Connecticut New York New Jersey Pennsylvania
Delaware
Maryland Virginia North Carolina South Carolina & Georgia do ordain,
declare &
establish the following Constitution for the government of ourselves &
Posterity.
[pg 23]
Article 1
The Style of this Government shall be The United States of America &
the Government shall consist of supreme legislative Executive &
judicial Powers.
The Legislative Power shall be vested in a Congress to consist of two
separate Houses—one to be called the House of Delegates & the
other the Senate who shall meet on the —— —— Day
of —— in every year.
The members of the House of Delegates shall be chosen every ——
year by the people of the several States & the qualification of the
electors shall be the same as those of the electors in the several States
for their legislatures—each member shall have been a citizen of the
United States for —— years; and shall be of ——
years of age & a resident in the State he is chosen for.——Until
a census of the people shall be taken in the manner herein after mentioned
the House of Delegates shall consist of —— to be chosen from
the different States in the following proportions: for New Hampshire,
——; for Massachusetts, —— for Rhode Island,
—— for Connecticut, —— for New York, ——
for New Jersey, —— for Pennsylvania, —— for
Delaware, —— for Mary
ld
, —— for
Virginia, —— for North Carolina, —— for South
Carolina, —— for Georgia, —— & the Legislature
shall hereafter regulate the number of delegates by the number of
inhabitants according to the Provisions herein after made, at the rate of
one for every —— thousand.—All money bills of every kind
shall originate in the house of Delegates
[pg 24]
& shall not be
altered by the Senate. The House of Delegates shall exclusively possess
the power of impeachment & shall choose it's own officers &
vacancies therein shall be supplied by the executive authority of the
State in the representation from which they shall happen.
The Senate shall be elected & chosen by the House of Delegates which
House immediately after their meeting shall choose by ballot ——
Senators from among the Citizens & residents of New Hampshire ——
from among those of Massachusetts —— from among those of Rhode
Island —— from among those of Connecticut —— from
among those of New York —— from among those of New Jersey
—— from among those of Pennsylvania —— from among
those of Delaware —— from among those of Maryland ——
from among those of Virginia —— from among those of North
Carolina —— from among those of South Carolina & ——
from among those of Georgia ——
The Senators chosen from New Hampshire Massachusetts Rhode Island &
Connecticut shall form one class—those from New York New Jersey
Pennsylvania & Delaware one class—& those from Maryland
Virginia North Carolina South Carolina & Georgia one class.
The House of Delegates shall number these Classes one two & three
& fix the times of their service by Lot—the first class shall
serve for —— years—the second for —— years
& the third for —— years—as their times of service
expire the House of Delegates shall fill them up by elections for ——
years & they shall fill all vacancies that arise from death or
resignation for the time of service remaining of the members so dying or
resigning.
[pg 25]
Each Senator shall be —— years of age at least—shall
have been a Citizen of the United States 4 years before his election &
shall be a resident of the State he is chosen from. The Senate shall
choose its own Officers.
Each State shall prescribe the time & manner of holding elections by
the People for the house of Delegates & the House of Delegates shall
be the judges of the elections returns & Qualifications of their
members.
In each house a Majority shall constitute a Quorum to do business—Freedom
of Speech & Debate in the legislature shall not be impeached or
Questioned in any place out of it & the Members of both Houses shall
in all cases except for Treason Felony or Breach of the Peace be free from
arrest during their attendance at Congress & in going to &
returning from it—Both Houses shall keep journals of their
Proceedings & publish them except on secret occasions & the yeas
& nays may be entered thereon at the desire of one —— of
the members present. Neither house without the consent of the other shall
adjourn for more than —— days nor to any Place but where they
are sitting.
The members of each house shall not be eligible to or capable of holding
any office under the Union during the time for which they have been
respectively elected nor the members of the Senate for one year after.
The members of each house shall be paid for their services by the States
which they represent.
Every bill which shall have passed the Legislature shall be presented to
the President of the United States for his revision—if he approves
it he shall sign it—but if he does not approve it he shall return it
with his objections to the house it originated in
[pg 26]
which house if two
thirds of the members present, notwithstanding the President's
objections agree to pass it, shall send it to the other house with the
President's objections, where if two thirds of the members present
also agree to pass it, the same shall become a law—& all bills
sent to the President & not returned by him within —— days
shall be laws unless the Legislature by their adjournment prevent their
return in which case they shall not be laws.
th
The Legislature of the United States shall have the power to lay &
collect Taxes Duties Imposts & excises
To regulate Commerce with all nations & among the several States.
To borrow money & emit bills of Credit
To establish Post offices.
To raise armies
To build & equip Fleets
To pass laws for arming organizing & disciplining the Militia of the
United States
To subdue a rebellion in any State on application of its legislature
To coin money & regulate the Value of all coins & fix the Standard
of Weights & measures
To provide such Dock Yards & arsenals & erect such fortifications
as may be necessary for the United States & to exercise exclusive
Jurisdiction therein
To appoint a Treasurer by ballot
To constitute Tribunals inferior to the Supreme Court
To establish Post & military Roads
To establish & provide for a national University at the Seat of the
Government of the United States
To establish uniform rules of Naturalization
[pg 27]
To provide for the establishment of a Seat of Government for the United
States not exceeding —— miles square in which they shall have
exclusive jurisdiction
To make rules concerning Captures from an Enemy
To declare the law & Punishment of piracies & felonies at sea
& of counterfeiting Coin & of all offences against the Laws of
Nations
To call forth the aid of the Militia to execute the laws of the Union
enforce treaties suppress insurrections and repel invasions
And to make all laws for carrying the foregoing powers into execution.
The Legislature of the United States shall have the Power to declare the
Punishment of Treason which shall consist only in levying War against the
United States or any of them or in adhering to their Enemies. No person
shall be convicted of Treason but by the testimony of two witnesses.
The proportion of direct taxation shall be regulated by the whole number
of inhabitants of every description which number shall within ——
years after the first meeting of the Legislature & within the term of
every —— year after be taken in the manner to be prescribed by
the Legislature
No Tax shall be laid on articles exported from the States—nor
capitation tax but in proportion to the Census before directed
All Laws regulating Commerce shall require the assent of two thirds of the
members present in each house—The United States shall not grant any
title of Nobility—The Legislature of the United States shall pass no
Law on the subject of Religion, nor touching or abridging the Liberty of
the Press nor shall the privilege of the writ of Habeas Corpus ever be
suspended except in case of Rebellion or Invasion.
All acts made by the Legislature of the United
[pg 28]
States pursuant to this
Constitution & all Treaties made under the authority of the United
States shall be the supreme Law of the land & all Judges shall be
bound to consider them as such in their decisions.
The Senate shall have the sole & exclusive power to declare War &
to make treaties & to appoint Ambassadors & other Ministers to
foreign nations & Judges of the Supreme Court.
They shall have the exclusive power to regulate the manner of deciding all
disputes & controversies now subsisting or which may arise between the
States respecting Jurisdiction or Territory.
The Executive Power of the United States shall be vested in a President of
the United States of America which shall be his style & his title
shall be His Excellency. He shall be elected for —— years
& shall be reeligible.
He shall from time to time give information to the Legislature of the
state of the Union & recommend to their consideration the measures he
may think necessary—he shall take care that the laws of the United
States be duly executed: he shall commission all the officers of the
United States & except as to Ambassadors other ministers and Judges of
the Supreme Court he shall nominate & with the consent of the Senate
appoint all other officers of the United States. He shall receive public
Ministers from foreign nations & may correspond with the Executives of
the different States. He shall have power to grant pardons & reprieves
except in impeachments—He shall be Commander in chief of the army
& navy of the United States & of the Militia of the several States
& shall receive a compensation which shall not be increased or
diminished
[pg 29]
during his continuance in office. At entering on the Duties of his office
he shall take an oath faithfully to execute the duties of a President of
the United States.—He shall be removed from his office on
impeachment by the house of Delegates & Conviction in the Supreme
Court of Treason bribery or Corruption—In case of his removal death
resignation or disability the President of the Senate shall exercise the
duties of his office until another President be chosen—& in case
of the death of the President of the Senate the Speaker of the House of
Delegates shall do so.
The Legislature of the United States shall have the Power and it shall be
their duty to establish such Courts of Law Equity & Admiralty as shall
be necessary—The Judges of the Courts shall hold their offices
during good behaviour & receive a compensation, which shall not be
increased or diminished during their continuance in office—One of
these Courts shall be termed the Supreme Court whose jurisdiction shall
extend to all cases arising under the laws of the United States or
affecting ambassadors other public Ministers & Consuls—to the
trial of impeachment of officers of the United States—to all cases
of Admiralty & maritime jurisdiction—In cases of impeachment
affecting ambassadors and other public Ministers this Jurisdiction shall
be original & in all other cases appellate——
All criminal offences (except in cases of impeachment) shall be tried in
the State where they shall be committed—the trials shall be open
& public & shall be by Jury.
10
Immediately after the first census of the people of the United States the
House of Delegates shall
[pg 30]
apportion the Senate by electing for each State out of the citizens
resident therein one Senator for every —— members each State
shall have in the House of Delegates—Each State shall be entitled to
have at least one member in the Senate.
11
No State shall grant letters of marque & reprisal or enter into treaty
or alliance or confederation nor grant any title of nobility nor without
the Consent of the Legislature of the United States lay any impost on
imports—nor keep troops or Ships of War in time of peace—nor
enter into compacts with other States or foreign powers or emit bills of
Credit or make any thing but Gold Silver or Copper a tender in payment of
debts nor engage in War except for self defence when actually invaded or
the danger of invasion be so great as not to admit of a delay until the
Government of the United States can be informed thereof—& to
render these prohibitions effectual the Legislature of the United States
shall have the power to revise the laws of the several States that may be
supposed to infringe the Powers exclusively delegated by this Constitution
to Congress & to negative & annul such as do.
12
The Citizens of each State shall be entitled to all privileges &
immunities of Citizens in the several States—Any person charged with
Crimes in any State fleeing from justice to another shall on demand of the
Executive of the State from which he fled be delivered up & removed to
the State having jurisdiction of the offence.
13
Full faith shall be given in each State to the acts
[pg 31]
of the Legislature &
to the records & judicial Proceedings of the Courts & magistrates
of every State.
14
The Legislature shall have power to admit new States into the Union on the
same terms with the original States provided two thirds of the members
present in both Houses agree.
15
On the application of the legislature of a State the United States shall
protect it against domestic insurrection.
16
If two thirds of the Legislatures of the States apply for the same the
Legislature of the United States shall call a Convention for the purpose
of amending the Constitution—or should Congress, with the Consent of
two thirds of each house, propose to the States amendments to the same—the
agreement of two thirds of the Legislatures of the States shall be
sufficient to make the said amendments parts of the Constitution.
The Ratification of the conventions of —— States shall be
sufficient for organizing this Constitution.
[34]
[34]
"... What
will be the result of their meeting I cannot with any certainty
determine, but I hardly think much good can come of it; the people of
America don't appear to me to be ripe for any great innovations
& it seems they are ultimately to ratify or reject: the weight of
Gen
Washington as you justly observe is very great in
America, but I hardly think it is sufficient to induce the people to
pay money or part with power.
"The delegates from the Eastw
are for a very strong
government, & wish to prostrate all y
State
legislatures, & form a general system out of y
whole;
but I don't learn that the people are with them, on y
contrary in Massachusetts they think that government too strong, &
are about rebelling again, for the purpose of making it more
democratical: In Connecticut they have rejected the requisition for y
present year decidedly, & no Man there would be elected to the
office of a constable if he was to declare that he meant to pay a
copper towards the domestic debt:—R. Island has refused to send
members—the cry there is for a good government after they have
paid their debts in depreciated paper:—first demolish the
Philistines (i. e. their creditors) then for
propiety
"N. Hampshire has not paid a shilling, since peace, & does
not ever mean to pay on to all eternity:—if it was attempted to
tax the people for y
domestic debt 500 Shays would arise
in a fortnight.—In N. York they pay well because they can do it
by plundering N. Jersey & Connecticut.—Jersey will go
great lengths from motives of revenge and Interest: Pensylvany will
join provided you let the sessions of the Executive of America be
fixed in Philad
& give her other advantages in trade
to compensate for the loss of State power. I shall make no
observations on the Southern States, but I think they will be (perhaps
from different motives) as little disposed to part with efficient
power as any in the Union...."—William Grayson to James Monroe,
New York, May 29, 1787.
Monroe MSS.
Adjourned.
[pg 32]
Wednesday May 30.
Roger Sherman (from Connecticut) took his seat.
The House went into Committee of the Whole on the State of the Union. M
Gorham was elected to the Chair by Ballot.
The propositions of M
Randolph which had been referred to the
Com̃ittee being taken up. He moved on the suggestion of M
G. Morris, that the first of his propositions to wit "Resolved that the
articles of Confederation ought to be so corrected & enlarged, as to
accomplish the objects proposed by their institution; namely, common
defence, security of liberty, and general welfare,—should be
postponed, in order to consider the 3 following:
1. that a union of the States merely federal will not accomplish the
objects proposed by the articles of Confederation, namely common
defence, security of liberty, & gen
welfare.
2. that no treaty or treaties among the whole or part of the States, as
individual Sovereignties, would be sufficient.
3. that a
national
Government ought to be established
[pg 33]
consisting of a
supreme
Legislative, Executive & Judiciary.
The motion for postponing was seconded by M
Gov
Morris and unanimously agreed to.
Some verbal criticisms were raised ag
st
the first proposition,
and it was agreed on motion of M
Butler seconded by M
Randolph, to pass on to the third, which underwent a discussion, less
however on its general merits than on the force and extent of the
particular terms
national & supreme
Charles Pinkney wished to know of M
Randolph,
whether he meant to abolish the State Govern
ts
altogether. M
R. replied that he meant by these general propositions merely to introduce
the particular ones which explained the outlines of the system he had in
view.
Butler said he had not made up his mind on the subject, and
was open to the light which discussion might throw on it. After some
general observations he concluded with saying that he had opposed the
grant of powers to Cong
heretofore, because the whole power
was vested in one body. The proposed distribution of the powers into
different bodies changed the case, and would induce him to go great
lengths.
Gen
Pinkney
[35]
expressed a doubt whether
the act of Cong
recom̃ending the Convention, or the
Commissions of the Deputies to it, could authorize a discussion of a
system founded on different principles from the federal Constitution.
[35]
"M
Ch
Cotesworth Pinckney is a Gentleman of Family and
fortune in his own State. He has received the advantage of a liberal
education, and possesses a very extensive degree of legal knowledge.
When warm in a debate he sometimes speaks well,—but he is
generally considered an indifferent Orator. Mr. Pinckney was an
Officer of high rank in the American Army, and served with great
reputation through the War. He is now about 40 years of age."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 333.
[pg 34]
Gerry
[36]
seemed to entertain the
same doubt.
[36]
"M. Gerry's
character is marked for integrity and perseverance. He is a hesitating
and laborious speaker;—possesses a great degree of confidence
and goes extensively into all subjects that he speaks on, without
respect to elegance or flower of diction. He is connected and
sometimes clear in his arguments, conceives well, and cherishes as his
first virtue, a love for his Country. Mr. Gerry is very much of a
Gentleman in his principles and manners;—he has been engaged in
the mercantile line and is a Man of property. He is about 37 years of
age."—Pierce's Notes,
Am. Hist. Rev.
, iii., 325.
Gov
Morris explained the distinction between a
federal
and
national
supreme
, Gov
; the
former being a mere compact resting on the good faith of the parties; the
latter having a compleat and
compulsive
operation. He contended
that in all Communities there must be one supreme power, and one only.
Mason observed that the present confederation was not only
deficient in not providing for coercion & punishment ag
st
delinquent States; but argued very cogently that punishment could not in
the nature of things be executed on the States collectively, and therefore
that such a Gov
was necessary as could directly operate on
individuals, and would punish those only whose guilt required it.
Sherman
[37]
who took his seat today,
admitted
[pg 35]
that the Confederation had not given sufficient power to Cong
and that additional powers were necessary; particularly that of raising
money which he said would involve many other powers. He admitted also that
the General & particular jurisdictions ought in no case to be
concurrent. He seemed however not to be disposed to make too great inroads
on the existing system; intimating as one reason, that it would be wrong
to lose every amendment, by inserting such as would not be agreed to by
the States.
[37]
"M
Sherman exhibits the oddest shaped character I ever remember to have
met with. He is awkward, un-meaning, and unaccountably strange in his
manner. But in his train of thinking there is something regular, deep,
and comprehensive; yet the oddity of his address, the vulgarisms that
accompany his public speaking, and that strange new England cant which
runs through his public as well as his private speaking make
everything that is connected with him grotesque and laughable;—and
yet he deserves infinite praise,—no Man has a better Heart or a
clearer Head. If he cannot embellish he can furnish thoughts that are
wise and useful. He is an able politician and extremely artful in
accomplishing any particular object;—it is remarked that he
seldom fails. I am told he sits on the Bench in Connecticut, and is
very correct in the discharge of his Judicial functions. In the early
part of his life he was a Shoe-maker;—but despising the lowness
of his condition, he turned Almanack maker, and so progressed upwards
to a Judge. He has been several years a Member of Congress, and
discharged the duties of his Office with honor and credit to himself,
and advantage to the State he represented. He is about 60."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 326.
It was moved by M
Read,
[38]
ded
by M
Ch
Cotesworth Pinkney, to
postpone the 3
proposition last offered by M
Randolph viz that a national Government ought to be established consisting
of a supreme Legislative Executive and Judiciary, in order to take up the
following,—viz. "Resolved that in order to carry into execution the
Design of the States in forming this Convention, and to accomplish the
objects proposed by the Confederation a more effective Government
consisting of a Legislative, Executive and Judiciary, ought to be
established." The motion to postpone for this purpose was lost:
Yeas Massachusetts, Connecticut, Delaware, S. Carolina—4. Nays. N. Y.
Pennsylvania, Virginia, North Carolina—4.
[38]
"M
Read is a Lawyer and a Judge;—his legal abilities are said to be
very great, but his powers of Oratory are fatiguing and tiresome to
the last degree;—his voice is feeble and his articulation so bad
that few can have patience to attend to him. He is a very good Man,
and bears an amiable character with those who know him. Mr. Read is
about 50, of a low stature, and a weak constitution."—Pierce's
Notes,
Id.
, iii., 330.
On the question as moved by M
Butler, on the third proposition
it was resolved in Committee of
[pg 36]
whole that a national govern
ought to be established consisting of a supreme Legislative Executive
& Judiciary,—Mass
ts
being ay.—Connect.—no.
N. York divided (Col. Hamilton ay. M
Yates no.) Pen
ay. Delaware ay. Virg
ay. N. C. ay. S. C. ay.
The following Resolution, being the 2
of those proposed by M
Randolph was taken up, viz.—"that the rights of suffrage in the
National Legislature ought to be proportioned to the quotas of
contribution, or to the number of free inhabitants, as the one or the
other rule may seem best in different cases."
Madison
[39]
observing that the words,
or to the number of free inhabitants
," might occasion debates
which would divert the Committee from the general question whether the
principle of representation should be changed, moved that they might be
struck out.
[39]
"Mr.
Madison is a character who has long been in public life; and what is
very remarkable every Person seems to acknowledge his greatness. He
blends together the profound politician, with the Scholar. In the
management of every great question he evidently took the lead in the
Convention, and tho' he cannot be called an Orator, he is a most
agreeable, eloquent, and convincing Speaker. From a spirit of industry
and application which he possesses in a most eminent degree, he always
comes forward the best informed Man of any point in debate. The
affairs of the United States, he perhaps, has the most correct
knowledge of, of any Man in the Union. He has been twice a Member of
Congress, and was always thought one of the ablest Members that ever
sat in that Council. Mr. Maddison is about 37 years of age, a
Gentleman of great modesty,—with a remarkable sweet temper. He
is easy and unreserved among his acquaintance, and has a most
agreeable style of conversation."—Pierce's Notes,
Am.
Hist. Rev.
, iii., 331.
King observed that the quotas of contribution which would
alone remain as the measure of representation, would not answer, because
waving every other view of the matter, the revenue might hereafter be so
collected by the General Gov
that the sums respectively drawn
from the States would not appear, and would besides be continually
varying.
[pg 37]
Madison admitted the propriety of the observation, and that
some better rule ought to be found.
Col. Hamilton moved to alter the resolution so as to read "that the rights
of suffrage in the national Legislature ought to be proportioned to the
number of free inhabitiants." M
Spaight 2
ded
the
motion.
It was then moved that the Resolution be postponed, which was agreed to.
Randolph and M
Madison then moved the following
resolution—"that the rights of suffrage in the national Legislature
ought to be proportioned."
It was moved and 2
ded
to amend it by adding "and not according
to the present system"—which was agreed to.
It was then moved & 2
ded
to alter the resolution so as to
read "that the rights of suffrage in the national Legislature ought not to
be according to the present system."
It was then moved & 2
ded
to postpone the Resolution moved
by M
Randolph & M
Madison, which being agreed
to:
Madison, moved, in order to get over the difficulties, the
following resolution—"that the equality of suffrage established by
the articles of Confederation ought not to prevail in the national
Legislature, and "that an equitable ratio of representation ought to be
substituted." This was 2
ded
by M
Gov
Morris, and being generally relished, would have been agreed to; when,
Reed moved that the whole clause relating to the point of
Representation be postponed; reminding the Com
that the
deputies from Delaware were restrained by their com̃ission from
assenting to any change of the rule of suffrage, and in case such a change
should be fixed on, it might become their duty to retire from the
Convention.
Gov
Morris observed that the valuable assistance
[pg 38]
of those members could not be lost without real concern, and that so early
a proof of discord in the Convention as the secession of a State, would
add much to the regret; that the change proposed was however so
fundamental an article in a national Gov
, that it could not be
dispensed with.
Madison observed that whatever reason might have existed for
the equality of suffrage when the Union was a federal one among sovereign
States, it must cease when a National Governm
, should be put
into the place. In the former case, the acts of Cong
depended
so much for their efficacy on the cooperation of the States, that these
had a weight both within & without Congress, nearly in proportion to
their extent and importance. In the latter case, as the acts of the Gen
Gov
, would take effect without the intervention of the State
legislatures, a vote from a small State w
, have the same
efficacy & importance as a vote from a large one, and there was the
same reason for different numbers of representatives from different
States, as from Counties of different extents within particular States. He
suggested as an expedient for at once taking the sense of the members on
this point and saving the Delaware deputies from embarrassment, that the
question should be taken in Committee, and the clause on report to the
House, be postponed without a question there. This however did not appear
to satisfy Mr. Read.
By several it was observed that no just construction of the Act of
Delaware, could require or justify a secession of her deputies, even if
the resolution were to be carried thro' the House as well as the
Committee. It was finally agreed however that the clause should be
postponed: it being understood that in the event the proposed change of
representation would certainly be agreed to, no objection or difficulty
being started from any other quarter than from Delaware.
[pg 39]
The motion of Mr. Read to postpone being agreed to,
The Committee then rose. The Chairman reported progress, and the House
having resolved to resume the subject in Committee to-morrow,
Adjourned to 10 O Clock.
Thursday May 31
[40]
[40]
"This day
the state of New Jersey was represented, so that there were now ten
states in Convention."—Yates,
Secret Proceedings
, etc.,
99. But in the
Journal of the Federal Convention (1819)
, as in
Madison's account, New Jersey is entered as present May 25th. On
May 30 two votes are recorded by Madison and in the
Journal
without New Jersey. It is probable that an error was made in the
Journal
and that Madison followed it.
William Pierce, from Georgia took his seat.
[41]
[41]
Rufus King
kept a few notes of the proceedings of the convention from May 31st to
August 8th. They are meagre, but corroborate Madison's report. See
King's
Life and Correspondence of Rufus King
, i., 587.
Pierce also kept a few rough notes of the proceedings which were
printed in the
Savannah Georgian
, April 19, 21, 22, 23, 24, 25,
26, and 28, 1828, and reprinted in
The American Historical Review
iii., 317
et seq.
They throw little additional light on the
debates, but wherever they do are quoted here, as are King's.
In Committee of the whole on Mr. Randolph's propositions.
The 3
Resolution "that the national Legislature ought to
consist of two branches" was agreed to without debate or dissent, except
that of Pennsylvania, given probably from complaisance to Doc
Franklin who was understood to be partial to a single House of
Legislation.
Resol: 4. first clause, "that the members of the first branch of the
National Legislature ought to be elected by the people of the several
States," being taken up,
Sherman opposed the election by the people, insisting that
it ought to be by the State Legislatures. The people he said, immediately
should have
[pg 40]
as little to do as may be about the Government. They want information and
are constantly liable to be misled.
Gerry. The evils we experience flow from the excess of
democracy. The people do not want virtue, but are the dupes of pretended
patriots. In Mass
ts
it had been fully confirmed by experience
that they are daily misled into the most baneful measures and opinions by
the false reports circulated by designing men, and which no one on the
spot can refute. One principal evil arises from the want of due provision
for those employed in the administration of Governm
. It would
seem to be a maxim of democracy to starve the public servants. He
mentioned the popular clamour in Mass
ts
for the reduction of
salaries and the attack made on that of the Gov
though secured
by the spirit of the Constitution itself. He had he said been too
republican heretofore: he was still however republican, but had been
taught by experience the danger of the levelling spirit.
Mason argued strongly for an election of the larger branch
by the people. It was to be the grand depository of the democratic
principle of the Gov
. It was, so to speak, to be our House of
Commons—It ought to know & sympathize with every part of the
community; and ought therefore to be taken not only from different parts
of the whole republic, but also from different districts of the larger
members of it, which had in several instances particularly in Virg
different interests and views arising from difference of produce, of
habits &c &c. He admitted that we had been too democratic but was
afraid we s
incautiously run into the opposite extreme. We
ought to attend to the rights of every class of the people. He had often
wondered at the indifference of the superior classes of society to this
dictate of humanity & policy, considering that however
[pg 41]
affluent their circumstances, or elevated their situations, might be, the
course of a few years, not only might but certainly would, distribute
their posterity throughout the lowest classes of Society. Every selfish
motive therefore, every family attachment, ought to recommend such a
system of policy as would provide no less carefully for the rights and
happiness of the lowest than of the highest orders of Citizens.
Wilson contended strenuously for drawing the most numerous
branch of the Legislature immediately from the people. He was for raising
the federal pyramid to a considerable altitude, and for that reason wished
to give it as broad a basis as possible. No government could long subsist
without the confidence of the people. In a republican Government this
confidence was peculiarly essential. He also thought it wrong to increase
the weight of the State Legislatures by making them the electors of the
national Legislature. All interference between the general and local
Governm
ts
should be obviated as much as possible. On
examination it would be found that the opposition of States to federal
measures had proceeded much more from the officers of the States, than
from the people at large.
Madison considered the popular election of one branch of the
national Legislature as essential to every plan of free Government. He
observed that in some of the States one branch of the Legislature was
composed of men already removed from the people by an intervening body of
electors. That if the first branch of the general legislature should be
elected by the State Legislatures, the second branch elected by the first—the
Executive by the second together with the first; and other appointments
again made for subordinate purposes by the Executive, the people would be
lost sight of altogether; and the necessary sympathy between them and
their
[pg 42]
rulers and officers, too little felt. He was an advocate for the policy of
refining the popular appointments by successive filtrations, but thought
it might be pushed too far. He wished the expedient to be resorted to only
in the appointment of the second branch of the Legislature, and in the
Executive & judiciary branches of the Government. He thought too that
the great fabric to be raised would be more stable and durable, if it
should rest on the solid foundation of the people themselves, than if it
should stand merely on the pillars of the Legislatures.
Gerry did not like the election by the people. The maxims
taken from the British Constitution were often fallacious when applied to
our situation which was extremely different. Experience he said had shewn
that the State legislatures drawn immediately from the people did not
always possess their confidence. He had no objection however to an
election by the people if it were so qualified that men of honor &
character might not be unwilling to be joined in the appointments. He
seemed to think the people might nominate a certain number out of which
the State legislatures should be bound to choose.
[42]
[42]
"Mr.
Strong would agree to the principle, provided it would undergo a
certain modification, but pointed out nothing."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 318.
Butler thought an election by the people an impracticable
mode.
On the question for an election of the first branch of the national
Legislature, by the people,
Mass
ts
ay. Connec
div
. N. York
ay. N. Jersey no. Pen
ay. Delaw
div
ay. N. C. ay. S. C. no. Georg
ay.
The remaiñg Clauses of Resolution 4
th
relating to the
qualifications of members of the National Legislature, being posp
nem. con., as entering too much into detail for general propositions.
[pg 43]
The Committee proceeded to Resolution 5. "that the second, (or senatorial)
branch of the National Legislature ought to be chosen by the first branch
out of persons nominated by the State Legislatures."
Spaight contended that the 2
branch ought to be
chosen by the State Legislatures and moved an amendment to that effect.
[43]
[43]
"M
King observed that the Question called for was premature, and out of
order,—that unless we go on regularly from one principle to the
other we shall draw out our proceedings to an endless length."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 318.
Butler apprehended that the taking so many powers out of the
hands of the States as was proposed, tended to destroy all that balance
and security of interests among the States which it was necessary to
preserve; and called on M
Randolph the mover of the
propositions, to explain the extent of his ideas, and particularly the
number of members he meant to assign to this second branch.
Rand
observed that he had at the time of
offering his propositions stated his ideas as far as the nature of general
propositions required; that details made no part of the plan, and could
not perhaps with propriety have been introduced. If he was to give an
opinion as to the number of the second branch, he should say that it ought
to be much smaller than that of the first; so small as to be exempt from
the passionate proceedings to which numerous assemblies are liable. He
observed that the general object was to provide a cure for the evils under
which the U. S. laboured; that in tracing these evils to their origin
every man had found it in the turbulance and follies of democracy: that
some check therefore was to be sought for ag
st
this tendency of
our Governments: and that a good Senate seemed most likely to answer the
purpose.
[44]
[44]
"Butler
said that until the number of the Senate could be known it would be
impossible for him to give a vote on it."—Pierce's Notes,
Am.
Hist. Rev.
, iii., 318.
[pg 44]
King reminded the Committee that the choice of the second
branch as proposed (by M
Spaight) viz. by the State
Legislatures would be impracticable, unless it was to be very numerous, or
the idea of proportion
among the States was to be disregarded.
According to this
idea
, there must be 80 or 100 members to entitle
Delaware to the choice of one of them.—M
Spaight
withdrew his motion.
Wilson opposed both a nomination by the State Legislatures,
and an election by the first branch of the national Legislature, because
the second branch of the latter, ought to be independent of both. He
thought both branches of the National Legislature ought to be chosen by
the people, but was not prepared with a specific proposition. He suggested
the mode of chusing the Senate of N. York to wit of uniting several
election districts for one branch, in chusing members for the other
branch, as a good model.
Madison observed that such a mode would destroy the
influence of the smaller States associated with larger ones in the same
district; as the latter would chuse from within themselves, altho'
better men might be found in the former. The election of Senators in Virg
where large & small counties were often formed into one district for
the purpose, had illustrated this consequence. Local partiality, would
often prefer a resident within the County or State, to a candidate of
superior merit residing out of it. Less merit also in a resident would be
more known throughout his own State.
[45]
[45]
"M
Butler moved to have the proposition relating to the first branch
postponed, in order to take up another,—which was that the
second branch of the Legislature consist of blank.
"M
King objected to the postponement for the reasons which
he had offered before."—Pierce's Notes,
Id.
, iii.,
319.
[pg 45]
Sherman favored an election of one member by each of the
State Legislatures.
[46]
[46]
According
to Pierce, Mason spoke after Sherman, and Pinckney's motion is
given more fully by Pierce than by Madison.
"M
Mason was of opinion that it would be highly improper
to draw the Senate out of the first branch; that it would occasion
vacancies which would cost much time, trouble, and expense to have
filled up,—besides which it would make the members too dependent
on the first branch.
"M
Ch
Pinckney said he meant to propose to
divide the Continent into four Divisions, out of which a certain
number of persons sh
be nominated, and out of that
nomination to appoint a senate."—Pierce's Notes,
Amer.
Hist. Rev.
, iii., 319.
Pinkney moved to strike out the "nomination by the State
Legislatures;" on this question.
[47]
Mass
ts
no.
Con
no. N. Y. no. N. J. no. Pen
no. Del. div
no. N. C. no.
S. C. no. Georg no.
[47]
This
question is omitted in the printed Journal, & the votes applied to
the succeeding one, instead of the votes as here stated.—Madison's
Note.
On the whole question for electing by the first branch out of nominations
by the State Legislatures, Mass. ay. Con
no. N. Y. no.
N. Jersey, no. Pen
no. Del. no. Virg
ay.
N. C. no. S. C. ay. G
no.
So the clause was disagreed to & a chasm left in this part of the
plan.
The sixth Resolution stating the cases in which the national Legislature
ought to legislate was next taken into discussion: On the question whether
each branch sh
originate laws, there was an unanimous
affirmative without debate. On the question for transferring all the
Legislative power of the existing Cong
to this Assembly, there
was also a silent affirmative nem. con.
On the proposition for giving "Legislative power in all cases to which the
State Legislatures were individually incompetent,"
[pg 46]
Pinkney & M
Rutledge
[48]
objected to the vagueness of the term
incompetent
, and said they
could not well decide how to vote until they should see an exact
enumeration of the powers comprehended by this definition.
[49]
[48]
"Mr.
Rutledge is one of those characters who was highly mounted at the
commencement of the late revolution;—his reputation in the first
Congress gave him a distinguished rank among the American Worthies. He
was bred to the Law, and now acts as one of the Chancellors of South
Carolina. This Gentleman is much famed in his own State as an Orator,
but in my opinion he is too rapid in his public speaking to be
denominated an agreeable Orator. He is undobotedly a man of abilities,
and a Gentleman of distinction and fortune. Mr. Rutledge was once
Governor of South Carolina. He is about 48 years of age."—Pierce's
Notes,
Amer. Hist. Rev.
, iii., 333.
[49]
According
to Pierce:
"M
Sherman was of opinion that it would be too
indefinitely expressed,—and yet it would be hard to define all
the powers by detail. It appeared to him that it would be improper for
the national Legislature to negative all the Laws that were connected
with the States themselves.
"M
Madison said it was necessary to adopt some general
principles on which we should act,—that we were wandering from
one thing to another without seeming to be settled in any one
principle.
"M
Wythe observed that it would be right to establish
general principles before we go into detail, or very shortly Gentlemen
would find themselves in confusion, and would be obliged to have
recurrence to the point from whence they sat out.
"M
King was of opinion that the principles ought first to
be established before we proceed to the framing of the Act. He
apprehends that the principles only go so far as to embrace all the
power that is given up by the people to the Legislature, and to the
federal Government, but no farther.
"M
Randolph was of opinion that it would be impossible to
define the powers and the length to which the federal Legislature
ought to extend just at this time.
"M
Wilson observed that it would be impossible to
enumerate the powers which the federal Legislature ought to have."—Pierce's
Notes,
Id.
, iii., 319, 320.
Butler repeated his fears that we were running into an
extreme in taking away the powers of the States, and called on Mr.
Randolph for the extent of his meaning.
[pg 47]
Randolph disclaimed any intention to give indefinite powers
to the national Legislature, declaring that he was entirely opposed to
such an inroad on the State jurisdictions, and that he did not think any
considerations whatever could ever change his determination. His opinion
was fixed on this point.
Madison said that he had brought with him into the
Convention a strong bias in favor of an enumeration and definition of the
powers necessary to be exercised by the national Legislature; but had also
brought doubts concerning its practicability. His wishes remained
unaltered; but his doubts had become stronger. What his opinion might
ultimately be he could not yet tell. But he should shrink from nothing
which should be found essential to such a form of Gov^[t.] as would
provide for the safety, liberty and happiness of the community. This being
the end of all our deliberations, all the necessary means for attaining it
must, however reluctantly, be submitted to.
On the question for giving powers, in cases to which the States are not
competent—Mass
ts
ay. Con
div
(Sherman no. Elseworth ay.) N. Y. ay. N. J. ay. P
ay.
Del. ay. V
ay. N. C. ay. S. Carolina ay.
Georg
ay.
The other clauses giving powers necessary to preserve harmony among the
States to negative all State laws contravening in the opinion of the Nat.
Leg. the articles of union, down to the last clause, (the words "or any
treaties subsisting under the authority of the Union," being added after
the words "contravening &c. the articles of the Union," on motion of D
Franklin) were agreed to with
debate or dissent.
The last clause of Resolution 6, authorizing an exertion of the force of
the whole ag
st
a delinquent State came next into consideration.
Madison, observed that the more he reflected
[pg 48]
on
the use of force, the more he doubted, the practicability, the justice and
the efficacy of it when applied to people collectively and not
individually.—A union of the States containing such an ingredient
seemed to provide for its own destruction. The use of force ag
st
a State, would look more like a declaration of war, than an infliction of
punishment, and would probably be considered by the party attacked as a
dissolution of all previous compacts by which it might be bound. He hoped
that such a system would be framed as might render this resource
unnecessary, and moved that the clause be postponed. This motion was
agreed to, nem. con.
The Committee then rose & the House
Adjourned.
[50]
[50]
"When the
Convention first opened at Philadelphia, there were a number of
propositions brought forward as great leading principles for the new
Government to be established for the United States. A copy of these
propositions was given to each Member with an injunction to keep
everything a profound secret. One morning, by accident, one of the
Members dropt his copy of the propositions, which being luckily picked
up by General Mifflin was presented to General Washington, our
President, who put it in his pocket. After the debates of the Day were
over, and the question for adjournment was called for, the General
arose from his seat, and previous to his putting the question
addressed the Convention in the following manner,—
"'Gentlemen
"'I am sorry to find that some one Member of this Body, has been
so neglectful of the secrets of the Convention as to drop in the State
House, a copy of their proceedings, which by accident was picked up
and delivered to me this Morning. I must entreat Gentlemen to be more
careful, lest our transactions get into the News Papers, and disturb
the public repose by premature speculations. I know not whose Paper it
is, but there it is [throwing it down on the table,] let him who owns
it take it.' At the same time he bowed, picked up his Hat, and
quitted the room with a dignity so severe that every Person seemed
alarmed; for my part I was extremely so, for putting my hand in my
pocket I missed my copy of the same Paper, but advancing up to the
Table my fears soon dissipated; I found it to be in the hand writing
of another Person. When I went to my lodgings at the Indian Queen, I
found my copy in a coat pocket which I had pulled off that Morning. It
is something remarkable that no Person ever owned the Paper."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 324.
[pg 49]
Friday June 1
st
1787
William Houston from Georgia took his seat.
The Committee of the whole proceeded to Resolution 7. "that a national
Executive be instituted, to be chosen by the national Legislature for the
term of —— years &c to be ineligible thereafter, to
possess the Executive powers of Congress &c."
Pinkney was for a vigorous Executive but was afraid the
Executive powers of the existing Congress might extend to peace & war
&c which would render the Executive a monarchy, of the worst kind, to
wit an elective one.
Wilson moved that the Executive consist of a single person.
C. Pinkney seconded the motion, so as to read "that a
National Ex. to consist of a single person, be instituted."
A considerable pause ensuing and the Chairman asking if he should put the
question, Doc
Franklin
[51]
observed that it was a point of great importance and wished that the
gentlemen would deliver their sentiments on it before the question was
put.
[51]
"D
Franklin is well known to be the greatest phylosopher of the present
age;—all the operations of nature he seems to understand,—the
very heavens obey him, and the Clouds yield up their Lightning to be
imprisoned in his rod. But what claim he has to the politician,
posterity must determine. It is certain that he does not shine much in
public Council,—he is no Speaker, nor does he seem to let
politics engage his attention. He is, however, a most extraordinary
Man, and he tells a story in a style more engaging than anything I
ever heard. Let his Biographer finish his character. He is 82 years
old, and possesses an activity of mind equal to a youth of 25 years of
age."—Pierce's Notes,
Amer. Hist. Rev.
, iii., 328.
Rutlidge animadverted on the shyness of gentlemen on this
and other subjects. He said it looked as if they supposed themselves
precluded by having frankly disclosed their opinions from afterwards
changing them, which he did not take to be at all the case. He said he was
for vesting the Executive power in a single person, tho' he was not
for
[pg 50]
giving him the power of war and peace. A single man would feel the
greatest responsibility and administer the public affairs best.
Sherman said he considered the Executive magistracy as
nothing more than an institution for carrying the will of the Legislature
into effect, that the person or persons ought to be appointed by and
accountable to the Legislature only, which was the depository of the
supreme will of the Society. As they were the best judges of the business
which ought to be done by the Executive department, and consequently of
the number necessary from time to time for doing it, he wished the number
might not be fixed, but that the legislature should be at liberty to
appoint one or more as experience might dictate.
Wilson preferred a single magistrate, as giving most energy
dispatch and responsibility to the office. He did not consider the
Prerogatives of the British Monarch as a proper guide in defining the
Executive powers. Some of these prerogatives were of a Legislative nature.
Among others that of war & peace &c. The only powers he considered
strictly Executive were those of executing the laws, and appointing
officers, not appertaining to and appointed by the Legislature.
[52]
[52]
According
to King, Madison followed Wilson: "Madison agreed with Wilson in the
Definition of Executive power.
Ex vi termini.
Executive power
does not include the Power of War and Peace. Executive Power shd. be
limited and defined. If large, we shall have the Evils of Elective
Monarchies. Perhaps the best plan will be a single Executive of long
duration, with a Council and with Liberty to dissent on his personal
Responsibility."—King's
Life and Correspondence of Rufus
King
, i., 588.
According to Pierce:
"M
Madison was of opinion that an Executive formed of
one Man would answer the purpose when aided by a Council, who should
have the right to advise and record their proceedings, but not to
control his authority."—Pierce's Notes,
Am. Hist. Rev.
iii., 320.
[pg 51]
Gerry favored the policy of annexing a Council to the
Executive in order to give weight & inspire confidence.
[53]
[53]
King gives
Gerry's remarks: "
Gerry.
I am in favor of a Council to
advise the Executive: they will be organs of information respecting
Persons qualified for various offices. Their opinions may be recorded,
so as to be liable to be called to account & impeached—in
this way, their Responsibility will be certain, and for misconduct
their Punishment sure."
Dickinson followed Gerry: "
Dickinson.
A limited yet vigorous
Executive is not republican, but peculiar to monarchy—the royal
Executive has vigour, not only by power, but by popular Attachment
& Report—an Equivalent to popular Attachment may be derived
from the Veto on the Legislative acts. We cannot have a limited
monarchy—our condition does not permit it. Republics are in the
beginning and for a time industrious, but they finally destroy
themselves because they are badly constituted. I dread the
consolidation of the States, & hope for a good national Govt. from
the present Division of the States with a feeble Executive.
"We are to have a Legislature of two branches, or two Legislatures, as
the sovereign of the nation—this will work a change unless you
provide that the judiciary shall aid and correct the Executive. The
first Branch of the Legislature, the H. of Representatives, must be on
another plan. The second Branch or Senate may be on the present scheme
of representing
the States
—the Representatives to be
apportioned according to the Quotas of the States paid into the
general Treasury. The Executive to be removed from office by the
national Legislature, on the Petition of seven States."—King's
Life and Correspondence of Rufus King
, i., 588
et seq.
Randolph strenuously opposed a unity in the Executive
magistracy. He regarded it as the fœtus of monarchy. We had he said
no motive to be governed by the British Govenm
as our
prototype. He did not mean however to throw censure on that Excellent
fabric. If we were in a situation to copy it he did not know that he
should be opposed to it; but the fixt genius of the people of America
required a different form of Government. He could not see why the great
requisites for the Executive department, vigor, dispatch &
responsibility could not be found in three men, as well as in one man. The
Executive ought to be independent. It ought
[pg 52]
therefore in order to
support its independence to consist of more than one.
Wilson said that unity in the Executive instead of being the
fetus of monarchy would be the best safeguard against tyranny. He repeated
that he was not governed by the British Model which was inapplicable to
the situation of this Country; the extent of which was so great, and the
manners so republican, that nothing but a great confederated Republic
would do for it.
Wilson's motion for a single magistrate was postponed by
common consent, the Committee seeming unprepared for any decision on it;
and the first part of the clause agreed to, viz—"that a National
Executive be instituted."
[54]
[54]
Williamson
followed Wilson, according to King: "
Williamson
—There is
no true difference between an Executive composed of a single person,
with a Council, and an Executive composed of three or more persons."—King's
Life and Correspondence of Rufus King
, i., 590.
Madison thought it would be proper, before a choice sh
be made between a unity and a plurality in the Executive, to fix the
extent of the Executive authority; that as certain powers were in their
nature Executive, and must be given to that departm
whether
administered by one or more persons, a definition of their extent would
assist the judgment in determining how far they might be safely entrusted
to a single officer. He accordingly moved that so much of the clause
before the Committee as related to the powers of the Executive sh
be struck out & that after the words "that a national Executive ought
to be instituted" there be inserted the words following viz. "with power
to carry into effect the national laws, to appoint to offices in cases not
otherwise provided for, and to execute such other powers "not Legislative
nor Judiciary in their nature," as may from time to time be delegated by
the national Legislature." The words
[pg 53]
"not legislative nor judiciary in
their nature" were added to the proposed amendment, in consequence of a
suggestion by Gen
Pinkney that improper powers might otherwise
be delegated.
Wilson seconded this motion.
Pinkney moved to amend the amendment by striking out the
last member of it; viz: "and to execute such other powers not Legislative
nor Judiciary in their nature as may from time to time be delegated." He
said they were unnecessary, the object of them being included in the
"power to carry into effect the national laws."
Randolph seconded the motion.
Madison did not know that the words were absolutely
necessary, or even the preceding words, "to appoint to offices &c. the
whole being perhaps included in the first member of the proposition. He
did not however see any inconveniency in retaining them, and cases might
happen in which they might serve to prevent doubts and misconstructions.
In consequence of the motion of M
Pinkney, the question on M
Madison's motion was divided; and the words objected to by M
Pinkney struck out; by the votes of Connecticut, N. Y., N. J.,
Pen
, Del., N. C., & Geo. ag
st
Mass., Virg
& S. Carolina the preceding part of the motion being first agreed
to; Connecticut divided all the other States in the affirmative.
The next clause in Resolution 7, relating to the mode of appointing, &
the duration of, the Executive being under consideration,
Wilson said he was almost unwilling to declare the mode
which he wished to take place, being apprehensive that it might appear
chimerical. He would say however at least that in theory he was for an
election by the people. Experience, particularly in N. York &
Mass
ts
, shewed that an election of the first magistrate by the
people at large, was both
[pg 54]
a convenient & successful mode.
The objects of choice in such cases must be persons whose merits have
general notoriety.
Sherman was for the appointment by the Legislature, and for
making him absolutely dependent on that body, as it was the will of that
which was to be executed. An independence of the Executive on the supreme
Legislature, was in his opinion the very essence of tyranny if there was
any such thing.
Wilson moves that the blank for the term of duration should
be filled with three years, observing at the same time that he preferred
this short period, on the supposition that a re-eligibility would be
provided for.
Pinkney moves for seven years.
Sherman was for three years, and ag
st
the
doctrine of rotation as throwing out of office the men best qualified to
execute its duties.
Mason was for seven years at least, and for prohibiting a
re-eligibility as the best expedient both for preventing the effect of a
false complaisance on the side of the Legislature towards unfit
characters; and a temptation on the side of the Executive to intrigue with
the Legislature for a re-appointment.
Bedford
[55]
was strongly opposed to
so long a term as seven years. He begged the Committee to consider what
the situation of the Country would be, in case the first magistrate should
be saddled on it for such a period and it should be found on trial that he
did not possess the qualifications ascribed to him, or should lose them
after his appointment. An impeachment he said would be no cure for this
evil,
[pg 55]
as an impeachment would reach misfeasance only, not incapacity. He was for
a triennial election, and for an ineligibility after a period of nine
years.
[55]
"Mr.
Bedford was educated for the Bar, and in his profession I am told, has
merit. He is a bold and nervous Speaker, and has a very commanding and
striking manner;—but he is warm and impetuous in his temper, and
precipitate in his judgment. Mr. Bedford is about 32 years old, and
very corpulent."—Pierce's Notes,
Am. Hist. Rev.
iii., 330.
On the question for seven years,
Mass
ts
divid
. Con
no. N. Y. ay.
N. J. ay. Pen
ay. Del. ay. Virg
ay.
N. C. no. S. C. no. Geor. no.
There being 5 ays, 4 noes, & 1 div
, a question was asked
whether a majority had voted in the Affirmative? The President decided
that it was an affirmative vote.
The
mode of appointing
the Executive was the next question.
Wilson renewed his declarations in favor of an appointment
by the people. He wished to derive not only both branches of the
Legislature from the people, without the intervention of the State
Legislatures but the Executive also; in order to make them as independent
as possible of each other, as well as of the States;
Col. Mason favors the idea, but thinks it impracticable. He wishes however
that M
Wilson might have time to digest it into his own form.—the
clause, "to be chosen by the National Legislature"—was accordingly
postponed.—
Rutlidge suggests an election of the Executive by the second
branch only of the national Legislature.
The Committee then rose and the House
Adjourned.
Saturday June 2
In Committee of whole
William Sam
Johnson from Connecticut, Daniel of St. Thomas
Jenifer, from Mary
, & John Lansing J
from N. York,
took their seats.
It was mov
& 2
ded
to postpone ye Resol: of M
[pg 56]
Randolph respecting the Executive, in order to take up the 2
branch of the Legislature; which being negatived by Mas: Con: Del: Virg:
N. C. S. C. Geo: ag
st
N. Y. Pen
Mary
The mode of appointing the Executive was resumed.
Wilson made the following motion, to be substituted for the
mode proposed by Mr. Randolph's resolution, "that the Executive
Magistracy shall be elected in the following manner: That the States be
divided into —— districts: & that the persons qualified to
vote in each district for members of the first branch of the national
Legislature elect —— members for their respective districts to
be electors of the Executive Magistracy, that the said Electors of the
Executive magistracy meet at —— and they or any ——
of them so met shall proceed to elect by ballot, but not out of their own
body —— person— in whom the Executive authority of the
national Government shall be vested."
Wilson repeated his arguments in favor of an election
without the intervention of the States. He supposed too that this mode
would produce more confidence among the people in the first magistrate,
than an election by the national Legislature.
Gerry, opposed the election by the National legislature.
There would be a constant intrigue kept up for the appointment. The
Legislature & the candidates w
bargain & play into one
another's hands, votes would be given by the former under promises or
expectations from the latter, of recompensing them by services to members
of the Legislature or to their friends. He liked the principle of M
Wilson's motion, but fears it would alarm & give a handle to the
State partizans, as tending to supersede altogether the State authorities.
He thought the Community not yet ripe for stripping the States of their
powers, even such as might not be requisite for local purposes. He was for
waiting till the people
[pg 57]
should feel more the necessity of it. He seemed to prefer the taking the
suffrages of the States, instead of Electors, or letting the Legislatures
nominate, and the electors appoint. He was not clear that the people ought
to act directly even in the choice of electors, being too little informed
of personal characters in large districts, and liable to deceptions.
Williamson
[56]
could see no advantage in
the introduction of Electors chosen by the people who would stand in the
same relation to them as the State Legislatures, whilst the expedient
would be attended with great trouble and expence.
[56]
"Mr.
Williamson is a Gentleman of education and talents. He enters freely
into public debate from his close attention to most subjects, but he
is no Orator. There is a great degree of good humour and pleasantry in
his character; and in his manners there is a strong trait of the
Gentleman. He is about 48 years of age."—Pierce's Notes,
Amer.
Hist. Rev.
, iii., 332.
On the question for agreeing to M
Wilson's substitute, it
was negatived: Mass
ts
no. Con
no. N. Y.
[57]
no. P
ay. Del. no. Mar
ay.
Virg
no. N. C. no. S. C. no. Geo
no.
[57]
New York,
in the printed Journal, divided.—Madison's Note.
On the question for electing the Executive by the national Legislature for
the term of seven years, it was agreed to, Mass
ts
ay. Con
ay.
N. Y. ay. Pen
no. Del. ay. Mary
no.
ay. N. C. ay. S. C. ay. Geo. ay.
Doc
Franklin moved that what related to the compensation for
the services of the Executive be postponed, in order to substitute—"whose
necessary expences shall be defrayed, but who shall receive no salary,
stipend fee or reward whatsoever for their services." He said that being
very sensible of the effect of age on his memory, he had been unwilling to
trust to that for the observations which seemed to support his motion and
had reduced them
[pg 58]
to writing, that he might with the permission of the Committee read
instead of speaking them. M
Wilson made an offer to read the
paper, which was accepted. The following is a literal copy of the paper:
Sir,
It is with reluctance that I rise to express a disapprobation of any one
article of the plan for which we are so much obliged to the honorable
gentleman who laid it before us. From its first reading I have borne a
good will to it, and in general wished it success. In this particular of
salaries to the Executive branch I happen to differ; and as my opinion
may appear new and chimerical, it is only from a persuasion that it is
right, and from a sense of duty that I hazard it. The Committee will
judge of my reasons when they have heard them, and their judgment may
possibly change mine.—I think I see inconveniences in the
appointment of salaries; I see none in refusing them, but on the
contrary, great advantages.
Sir, there are two passions which have a powerful influence on the
affairs of men. These are ambition and avarice; the love of power, and
the love of money. Separately each of these has great force in prompting
men to action; but when united in view of the same object, they have in
many minds the most violent effects. Place before the eyes of such men,
a post of
honour
that shall be at the same time a place of
profit
and they will move heaven and earth to obtain it. The vast number of
such places it is that renders the British Government so tempestuous.
The struggles for them are the true sources of all those factions which
are perpetually dividing the Nation, distracting its Councils, hurrying
sometimes into fruitless & mischievous wars, and often compelling a
submission to dishonorable terms of peace.
[pg 59]
And of what kind are the men that will strive for this profitable
pre-eminence, through all the bustle of cabal, the heat of contention,
the infinite mutual abuse of parties, tearing to pieces the best of
characters? It will not be the wise and moderate, the lovers of peace
and good order, the men fittest for the trust. It will be the bold and
the violent, the men of strong passions and indefatigable activity in
their selfish pursuits. These will thrust themselves into your
Government and be your rulers.—And these too will be mistaken in
the expected happiness of their situation: For their vanquished
competitors of the same spirit, and from the same motives will
perpetually be endeavouring to distress their administration, thwart
their measures, and render them odious to the people.
Besides these evils, Sir, tho' we may set out in the beginning with
moderate salaries, we shall find that such will not be of long
continuance. Reasons will never be wanting for proposed augmentations.
And there will always be a party for giving more to the rulers, that the
rulers may be able in return to give more to them. Hence as all history
informs us, there has been in every State & Kingdom a constant kind
of warfare between the Governing & Governed; the one striving to
obtain more for its support, and the other to pay less. And this has
alone occasioned great convulsions, actual civil wars, ending either in
dethroning of the Princes, or enslaving of the people. Generally indeed
the ruling power carries its point, the revenues of princes constantly
increasing, and we see that they are never satisfied, but always in want
of more. The more the people are discontented with the oppression of
taxes; the greater need the prince has of money to distribute among his
partizans and pay the troops that are to suppress all resistance, and
enable him to plunder at pleasure. There is scarce a king in an hundred
who would not,
[pg 60]
if he could, follow the example of Pharoah, get first all the people's
money, then all their lands, and then make them and their children
servants for ever. It will be said, that we don't propose to
establish Kings. I know it. But there is a natural inclination in
mankind to Kingly Government. It sometimes relieves them from
Aristocratic domination. They had rather have one tyrant than five
hundred. It gives more of the appearance of equality among Citizens, and
that they like. I am apprehensive therefore, perhaps too apprehensive,
that the Government of these States, may in future times, end in a
Monarchy. But this Catastrophe I think may be long delayed, if in our
proposed System we do not sow the seeds of contention, faction &
tumult, by making our posts of honor, places of profit. If we do, I fear
that tho' we do employ at first a number, and not a single person,
the number will in time be set aside, it will only nourish the fœtus
of a King, as the honorable gentleman from Virginia very aptly expressed
it, and a King will the sooner be set over us.
It may be imagined by some that this is an Utopian Idea, and that we can
never find men to serve us in the Executive department, without paying
them well for their services. I conceive this to be a mistake. Some
existing facts present themselves to me, which incline me to a contrary
opinion. The high Sheriff of a County in England is an honorable office,
but it is not a profitable one. It is rather expensive and therefore not
sought for. But yet, it is executed and well executed, and usually by
some of the principal Gentlemen of the County. In France, the office of
Counsellor, or Member of their Judiciary Parliaments is more honorable.
It is therefore purchased at a high price: There are indeed fees on the
law proceedings, which are divided among them, but these fees do not
amount to more than three Per
[pg 61]
Cent on the sum paid for the place.
Therefore as legal interest is there at five PerC
they in
fact pay two PerC
for being allowed to do the Judiciary
business of the Nation, which is at the same time entirely exempt from
the burden of paying them any salaries for their services. I do not
however mean to recommend this as an eligible mode for our Judiciary
department. I only bring the instance to shew that the pleasure of doing
good & serving their Country and the respect such conduct entitles
them to, are sufficient motives with some minds to give up a great
portion of their time to the Public, without the mean inducement of
pecuniary satisfaction.
Another instance is that of a respectable Society who have made the
experiment, and practised it with success more than one hundred years. I
mean the Quakers. It is an established rule with them, that they are not
to go to law; but in their controversies they must apply to their
monthly, quarterly and yearly meetings. Committees of these sit with
patience to hear the parties, and spend much time in composing their
differences. In doing this, they are supported by a sense of duty, and
the respect paid to usefulness. It is honorable to be so employed, but
it is never made profitable by salaries, fees or perquisites. And indeed
in all cases of Public service the less the profit the greater the
honor.
To bring the matter nearer home, have we not seen, the great and most
important of our offices, that of General of our armies executed for
eight years together without the smallest salary, by a Patriot whom I
will not now offend by any other praise; and this through fatigues and
distresses in common with the other brave men his military friends &
companions, and the constant anxieties peculiar to his station? And
shall we doubt finding three or four men in all the U. States, with
public spirit enough to bear sitting in peaceful Council for
[pg 62]
perhaps an equal term, merely to preside over our civil concerns, and
see that our laws are duly executed. Sir, I have a better opinion of our
Country. I think we shall never be without a sufficient number of wise
and good men to undertake and execute well and faithfully the office in
question.
Sir. The saving of the salaries that may at first be proposed is not an
object with me. The subsequent mischiefs of proposing them are what I
apprehend. And therefore it is, that I move the amendment. If it is not
seconded or accepted I must be contented with the satisfaction of having
delivered my opinion frankly and done my duty.
The motion was seconded by Col. Hamilton, with the view he said merely of
bringing so respectable a proposition before the Committee, and which was
besides enforced by arguments that had a certain degree of weight. No
debate ensued, and the proposition was postponed for the consideration of
the members. It was treated with great respect, but rather for the author
of it, than from any apparent conviction of its expediency or
practicability.
Dickinson moved,
[58]
"that the Executive be
made removable by the National Legislature on the request of a majority of
the Legislatures of individual States." It was necessary he said to place
the power
[pg 63]
of removing somewhere. He did not like the plan of impeaching the Great
officers of State. He did not know how provision could be made for removal
of them in a better mode than that which he had proposed. He had no idea
of abolishing the State Governments as some gentlemen seemed inclined to
do. The happiness of this Country in his opinion required considerable
powers to be left in the hands of the States.
[58]
"Mr.
Dickinson has been famed through all America for his Farmers Letters;
he is a Scholar, and said to be a Man of very extensive information.
When I saw him in the Convention I was induced to pay the greatest
attention to him whenever he spoke. I had often heard that he was a
great Orator, but I found him an indifferent Speaker. With an affected
air of wisdom he labors to produce a trifle,—his language is
irregular and incorrect,—his flourishes, (for he sometimes
attempts them,) are like expiring flames, they just shew themselves
and go out;—no traces of them are left on the mind to chear or
animate it. He is, however, a good writer and will be ever considered
one of the most important characters in the United States. He is about
55 years old, and was bred a Quaker."—Pierce's Notes,
Am.
Hist. Rev.
, iii., 329.
Bedford seconded the motion.
Sherman contended that the national Legislature should have
power to remove the Executive at pleasure.
Mason. Some mode of displacing an unfit magistrate is
rendered indispensable by the fallibility of those who choose, as well as
by the corruptibility of the man chosen. He opposed decidedly the making
the Executive the mere creature of the Legislature as a violation of the
fundamental principle of good Government.
Madison & M
Wilson observed that it would
leave an equality of agency in the small with the great States; that it
would enable a minority of the people to prevent y
removal of
an officer who had rendered himself justly criminal in the eyes of a
majority; that it would open a door for intrigues ag
st
him in
States where his administration tho' just might be unpopular, and
might tempt him to pay court to particular States whose leading partizans
he might fear, or wish to engage as his partizans. They both thought it
bad policy to introduce such a mixture of the State authorities, where
their agency could be otherwise supplied.
Dickinson considered the business as so important that no
man ought to be silent or reserved. He went into a discourse of some
length, the sum of which was, that the Legislative, Executive, &
Judiciary departments ought to be made as independ
[pg 64]
as
possible; but that such an Executive as some seemed to have in
contemplation was not consistent with a republic: that a firm Executive
could only exist in a limited monarchy. In the British Gov
itself the weight of the Executive arises from the attachments which the
Crown draws to itself, & not merely from the force of its
prerogatives. In place of these attachments we must look out for something
else. One source of stability is the double branch of the Legislature. The
division of the Country into distinct States formed the other principal
source of stability. This division ought therefore to be maintained, and
considerable powers to be left with the States. This was the ground of his
consolation for the future fate of his Country. Without this, and in case
of a consolidation of the States into one great Republic, we might read
its fate in the history of smaller ones. A limited Monarchy he considered
as
one
of the best Governments in the world. It was not
certain
that the same blessings were derivable from any other form. It was certain
that equal blessings had never yet been derived from any of the republican
form. A limited Monarchy however was out of the question. The spirit of
the times—the state of our affairs forbade the experiment, if it
were desireable. Was it possible moreover in the nature of things to
introduce it even if these obstacles were less insuperable. A House of
Nobles was essential to such a Gov
could these be created by a
breath, or by a stroke of the pen? No. They were the growth of ages, and
could only arise under a complication of circumstances none of which
existed in this Country. But though a form the most perfect
perhaps
in itself be unattainable, we must not despair. If antient republics have
been found to flourish for a moment only & then vanish for ever, it
only proves that they were badly constituted; and that we
[pg 65]
ought
to seek for every remedy for their diseases. One of these remedies he
conceived to be the accidental lucky division of this Country into
distinct States; a division which some seemed desirous to abolish
altogether.
As to the point of representation in the national Legislature as it might
affect States of different sizes, he said it must probably end in mutual
concession. He hoped that each State would retain an equal voice at least
in one branch of the National Legislature, and supposed the sums paid
within each State would form a better ratio for the other branch than
either the number of inhabitants or the quantum of property.
[59]
[59]
According
to Pierce: "M
Madison said it was far from being his wish
that every executive Officer should remain in Office, without being
amenable to some Body for his conduct."—Pierce's Notes,
Am.
Hist. Rev.
, iii., 321.
A motion being made to strike out, "on request by a majority of the
Legislatures of the individual States," and rejected, Connecticut, S. Carol:
& Geo. being ay, the rest no: the question on M
Dickinson's
motion for making Executive removable by Nat
Legislature at
request of majority of State Legislatures was also rejected all the States
being in the negative Except Delaware which gave an affirmative vote.
The Question for making y
Executive ineligible after seven
years, was next taken and agreed to: Mass
ts
ay. Con
no.
N. Y. ay. P
div
. Del. ay. Mary
ay.
ay. N. C. ay. S. C. ay. Geo. no.
[60]
[60]
In printed
Journal Geo. ay.—Madison's Note.
Williamson 2
ded
by M
Davie
[61]
moved to add to the last clause, the words—"and
to be removable
[pg 66]
on impeachment & conviction of mal-practice or neglect of duty"—which
was agreed to.
[61]
"Mr. Davey
is a Lawyer of some eminence in his State. He is said to have a good
classical education, and is a Gentleman of considerable literary
talents. He was silent in the Convention, but his opinion was always
respected. Mr. Davy is about 30 years of age."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 332.
Rutlidge & M
C. Pinkney moved that the blank
for the n
of persons in the Executive be filled with the words
"one person." He supposed the reasons to be so obvious & conclusive in
favor of one that no member would oppose the motion.
Randolph opposed it with great earnestness, declaring that
he should not do justice to the Country which sent him if he were silently
to suffer the establishm
of a Unity in the Executive
department. He felt an opposition to it which he believed he should
continue to feel as long as he lived. He urged 1. that the permanent
temper of the people was adverse to the very semblance of Monarchy. 2.
that a unity was unnecessary a plurality being equally competent to all
the objects of the department. 3. that the necessary confidence would
never be reposed in a single Magistrate. 4. that the appointments would
generally be in favor of some inhabitant near the center of the Community,
and consequently the remote parts would not be on an equal footing. He was
in favor of three members of the Executive to be drawn from different
portions of the country.
Butler contended strongly for a single magistrate as most
likely to answer the purpose of the remote parts. If one man should be
appointed he would be responsible to the whole, and would be impartial to
its interests. If three or more should be taken from as many districts,
there would be a constant struggle for local advantages. In Military
matters this would be particularly mischievous. He said his opinion on
this point had been formed under the opportunity he had had of seeing the
manner in which a plurality of military heads distracted Holland when
threatened with invasion by the imperial troops. One man was for directing
the
[pg 67]
force to the defence of this part, another to that part of the Country,
just as he happened to be swayed by prejudice or interest.
The motion was then postp
, the Committee rose & the House
Adj
Monday June 4. In Committee of the Whole
The Question was resumed on motion of M
Pinkney, 2
ded
by M
Wilson, "shall the blank for the number of the Executive
be filled with a single person?"
Wilson was in favor of the motion. It had been opposed by
the gentleman from Virg
(Mr. Randolph) but the arguments used
had not convinced him. He observed that the objections of M
R.
were levelled not so much ag
t the measure itself, as ag
st
its unpopularity. If he could suppose that it would occasion a rejection
of the plan of which it should form a part, though the part were an
important one, yet he would give it up rather than lose the whole. On
examination he could see no evidence of the alledged antipathy of the
people. On the contrary he was persuaded that it does not exist. All know
that a single magistrate is not a King. One fact has great weight with
him. All the 13 States tho agreeing in scarce any other instance, agree in
placing a single magistrate at the head of the Govern
. The
idea of three heads has taken place in none. The degree of power is indeed
different; but there are no co-ordinate heads. In addition to his former
reasons for preferring a Unity, he would mention another. The
tranquillity
not less than the vigor of the Gov
he thought would be favored
by it. Among three equal members, he foresaw nothing but uncontrouled,
continued, & violent animosities; which would not only interrupt the
public administration; but diffuse their poison
[pg 68]
thro' the other
branches of Gov
, thro' the States, and at length thro'
the people at large. If the members were to be unequal in power the
principle of opposition to the Unity was given up. If equal, the making
them an odd number would not be a remedy. In Courts of Justice there are
two sides only to a question. In the Legislative & Executive departm
ts
questions have commonly many sides. Each member therefore might espouse a
separate one & no two agree.
[62]
[62]
According
to Pierce, King followed Wilson:
"Mr. King was of opinion that the Judicial ought not to join in the
negative of a Law, because the Judges will have the expounding of
those Laws when they come before them; and they will no doubt stop
the operation of such as shall appear repugnant to the
Constitution."—Pierce's Notes,
Am. Hist. Rev.
iii., 322.
Sherman. This matter is of great importance and ought to be
well considered before it is determined. M
Wilson he said had
observed that in each State a single magistrate was placed at the head of
the Gov
. It was so he admitted, and properly so, and he wished
the same policy to prevail in the federal Gov
. But then it
should be also remarked that in all the States there was a Council of
advice, without which the first magistrate could not act. A council he
thought necessary to make the establishment acceptable to the people. Even
in G. B. the King has a Council; and though he appoints it himself, its
advice has its weight with him, and attracts the Confidence of the people.
Williamson asks M
Wilson whether he means to
annex a Council.
Wilson means to have no Council, which oftener serves to
cover, than prevent malpractices.
Gerry was at a loss to discover the policy of three members
for the Executive. It w
be extremely inconvenient in many
instances, particularly in military matters, whether relating to the
militia,
[pg 69]
an army, or a navy. It would be a general with three heads.
On the question for a single Executive it was agreed to Mass
ts
ay.
Con
ay. N. Y. no. Pen
ay. Del. no.
Mary
no. Virg
ay. (M
R.
& M
Blair no—Doc
McC
M. & Gen. W. ay. Col. Mason being no., but not in the house, M
Wythe ay. but gone home). N. C. ay. S. C. ay. Georg
ay.
First Clause of Proposition 8
th
relating
to a Council of
Revision
taken into consideration.
Gerry doubts whether the Judiciary ought to form a part of
it, as they will have a sufficient check ag
st
encroachments on
their own department by their exposition of the laws, which involved a
power of deciding on their Constitutionality. In some States the Judges
had actually set aside laws as being ag
st
the Constitution.
This was done too with general approbation. It was quite foreign from the
nature of y
office to make them judges of the policy of public
measures. He moves to postpone the clause in order to propose "that the
National Executive shall have a right to negative any Legislative act
which shall not be afterwards passed by —— parts of each
branch of the national Legislature."
King seconds the motion, observing that the Judges ought to
be able to expound the law as it should come before them, free from the
bias of having participated in its formation.
Wilson thinks neither the original proposition nor the
amendment goes far enough. If the Legislative Exetv & Judiciary ought
to be distinct & independent, The Executive ought to have an absolute
negative. Without such a self-defence the Legislature can at any moment
sink it into non-existence. He was for varying the proposition in such a
manner as to give the Executive & Judiciary jointly an absolute
negative.
On the question to postpone in order to take M
[pg 70]
Gerry's
proposition into consideration it was agreed to, Mass
ay.
Con
no. N. Y. ay. P
ay. Del. no.
Mary
no. Virg
no. N. C ay. S. C. ay.
ay.
Mr. Gerry's proposition being now before Committee, M
Wilson & M
Hamilton move that the last part of it (viz. "w
ch
not be afterw
ds
passed "unless by ——
parts of each branch of the National legislature") be struck out, so as to
give the Executive an absolute negative on the laws. There was no danger
they thought of such a power being too much exercised. It was mentioned by
Col: Hamilton that the King of G. B. had not exerted his negative since
the Revolution.
Gerry sees no necessity for so great a controul over the
legislature as the best men in the Community would be comprised in the two
branches of it.
Doc
Franklin, said he was sorry to differ from his colleague
for whom he had a very great respect, on any occasion, but he could not
help it on this. He had had some experience of this check in the Executive
on the Legislature, under the proprietary Government of Pen
The negative of the Governor was constantly made use of to extort money.
No good law whatever could be passed without a private bargain with him.
An increase of his salary, or some donation, was always made a condition;
till at last it became the regular practice, to have orders in his favor
on the Treasury, presented along with the bills to be signed, so that he
might actually receive the former before he should sign the latter. When
the Indians were scalping the western people, and notice of it arrived,
the concurrence of the Governor in the means of self-defence could not be
got, till it was agreed that his Estate should be exempted from taxation:
so that the people were to fight for the security of his property, whilst
he was to bear no share of the burden. This was a mischevous sort of
check. If the Executive was to have a Council,
[pg 71]
such a power would be
less objectionable. It was true, the King of G. B. had not, as was said,
exerted his negative since the Revolution; but that matter was easily
explained. The bribes and emoluments now given to the members of
parliament rendered it unnecessary, every thing being done according to
the will of the Ministers. He was afraid, if a negative should be given as
proposed, that more power and money would be demanded, till at last eno'
would be gotten to influence & bribe the Legislature into a compleat
subjection to the will of the Executive.
Sherman was ag
st
enabling any one man to stop the
will of the whole. No one man could be found so far above all the rest in
wisdom. He thought we ought to avail ourselves of his wisdom in revising
the laws, but not permit him to overrule the decided and cool opinions of
the Legislature.
Madison supposed that if a proper proportion of each branch
should be required to overrule the objections of the Executive, it would
answer the same purpose as an absolute negative. It would rarely if ever
happen that the Executive constituted as ours is proposed to be, would
have firmness eno' to resist the legislature, unless backed by a
certain part of the body itself. The King of G. B. with all his splendid
attributes would not be able to withstand y
unanimous and
eager wishes of both houses of Parliament. To give such a prerogative
would certainly be obnoxious to the temper of this Country; its present
temper at least.
Wilson believed as others did that this power would seldom
be used. The Legislature would know that such a power existed, and would
refrain from such laws, as it would be sure to defeat. Its silent
operation would therefore preserve harmony and prevent mischief. The case
of Pen
formerly was very different from its present case. The
Executive was not then as now to be appointed by the
[pg 72]
people. It will not in
this case as in the one cited be supported by the head of a Great Empire,
actuated by a different & sometimes opposite interest. The salary too
is now proposed to be fixed by the Constitution, or if D
F.'s
idea should be adopted all salary whatever interdicted. The requiring a
large proportion of each House to overrule the Executive check might do in
peaceable times; but there might be tempestuous moments in which
animosities may run high between the Executive and Legislative branches,
and in which the former ought to be able to defend itself.
Butler had been in favor of a single Executive Magistrate;
but could he have entertained an idea that a compleat negative on the laws
was to be given him he certainly should have acted very differently. It
had been observed that in all countries the Executive power is in a
constant course of increase. This was certainly the case in G. B.
Gentlemen seemed to think that we had nothing to apprehend from an abuse
of the Executive power. But why might not a Cataline or a Cromwell arise
in this Country as well as in others.
Bedford was opposed to every check on the Legislature, even
the Council of Revision first proposed. He thought it would be sufficient
to mark out in the Constitution the boundaries to the Legislative
Authority, which would give all the requisite security to the rights of
the other departments. The Representatives of the people were the best
Judges of what was for their interest, and ought to be under no external
controul whatever. The two branches would produce a sufficient controul
within the Legislature itself.
Col. Mason observed that a vote had already passed he found [he was out at
the time] for vesting the executive powers in a single person. Among these
powers was that of appointing to offices in certain cases. The probable
abuses of a negative had
[pg 73]
been well explained by D
F. as proved by experience, the best
of all tests. Will not the same door be opened here. The Executive may
refuse its assent to necessary measures till new appointments shall be
referred to him; and having by degrees engrossed these into all his own
hands, the American Executive, like the British, will by bribery &
influence, save himself the trouble & odium of exerting his negative
afterwards. We are M
Chairman going very far in this business.
We are not indeed constituting a British Government, but a more dangerous
monarchy, an elective one. We are introducing a new principle into our
system, and not necessary as in the British Gov
where the
Executive has greater rights to defend. Do gentlemen mean to pave the way
to hereditary Monarchy? Do they flatter themselves that the people will
ever consent to such an innovation? If they do I venture to tell them,
they are mistaken. The people never will consent. And do gentlemen
consider the danger of delay, and the still greater danger of a rejection,
not for a moment but forever, of the plan which shall be proposed to them.
Notwithstanding the oppression & injustice experienced among us from
democracy; the genius of the people is in favor of it, and the genius of
the people must be consulted. He could not but consider the federal system
as in effect dissolved by the appointment of this Convention to devise a
better one. And do gentlemen look forward to the dangerous interval
between extinction of an old, and the establishment of a new Governm
and to the scenes of confusion which may ensue. He hoped that nothing like
a Monarchy would ever be attempted in this Country. A hatred to its
oppressions had carried the people through the late Revolution. Will it
not be eno' to enable the Executive to suspend offensive laws, till
they shall be coolly revised, and the objections to them overruled
[pg 74]
by a
greater majority than was required in the first instance. He never could
agree to give up all the rights of the people to a single magistrate: If
more than one had been fixed on, greater powers might have been entrusted
to the Executive. He hoped this attempt to give such powers would have its
weight hereafter as an argument for increasing the number of the
Executive.
Doc
Franklin. A Gentleman from S. C., (M
Butler) a day or two ago called our attention to the case of the U.
Netherlands. He wished the gentleman had been a little fuller, and had
gone back to the original of that Gov
. The people being under
great obligations to the Prince of Orange whose wisdom and bravery had
saved them, chose him for the Stadtholder. He did very well.
Inconveniences however were felt from his powers; which growing more &
more oppressive, they were at length set aside. Still however there was a
party for the P. of Orange, which descended to his son who excited
insurrections, spilt a great deal of blood, murdered the de Witts, and got
the powers revested in the Stadtholder. Afterwards another Prince had
power to excite insurrections & make the Stadtholdership hereditary.
And the present Stadth
der
is ready to wade thro' a bloody
civil war to the establishment of a monarchy. Col. Mason had mentioned the
circumstance of appointing officers. He knew how that point would be
managed. No new appointment would be suffered as heretofore in Pens
unless it be referred to the Executive; so that all profitable offices
will be at his disposal. The first man put at the helm will be a good one.
No body knows what sort may come afterwards. The Executive will be always
increasing here, as elsewhere, till it ends in a Monarchy.
On the question for striking out so as to give Executive an absolute
negative,—Mass
ts
no. Con
[pg 75]
no.
N. Y. no. P
no. Del. no. M
no.
no. N. C. no. S. C. no. Georg
no.
Butler moved that the Resol
be altered so as to
read—"Resolved that the National Executive have a power to suspend
any Legislative act for the term of ——."
Doct
Franklin seconds the motion.
Gerry observed that a power of suspending might do all the
mischief dreaded from the negative of useful laws; without answering the
salutary purpose of checking unjust or unwise ones.
On question "for giving this suspending power" all the States, to wit Mass
ts
Con
N. Y. P
Del. Mary
Virg
N. C. S. C. Georgia, were
No
On a question for enabling
two thirds
of each branch of the
Legislature to overrule the revisionary check, it passed in the
affirmative sub silentio; and was inserted in the blank of M
Gerry's motion.
On the question on M
Gerry's motion which gave the
Executive alone without the Judiciary the revisionary controul on the laws
unless overruled by 2/3 of each branch; Mass
ts
ay. Con
no.
N. Y. ay. P
ay. Del. ay. Mary
no.
ay. N. C. ay. S. C. ay. Geo. ay.
It was moved by M
Wilson 2
ded
by M
Madison—that the following amendment be made to the last resolution—after
the words "National Ex." to add "& a convenient number of the National
Judiciary."
[63]
[63]
Before the
motion, according to King's notes:
Madison
—The judiciary ought to be introduced in the
business of Legislation—they will protect their department,
and united with the Executive make its negatives more strong. There
is weight in the objections to this measure—but a check on the
Legislature is necessary, Experience proves it to be so, and teaches
us that what has been thought a calumny on a republican Govt. is
nevertheless true—In all Countries are diversity of Interests,
the Rich & the Poor, the Dr. & Cr., the followers of
different Demagogues, the Diversity of religious Sects—the
Effects of these Divisions in Ancient Govts. are well known, and the
like causes will now produce like effects. We must therefore
introduce in our system Provisions against the measures of an
interested majority—a check is not only necessary to protect
the Executive power, but the minority in the Legislature. The
independence of the Executive, having the Eyes of all upon him will
make him an impartial judge—add the Judiciary, and you greatly
increase his respectability."
After the motion: "Dickinson opposed—You shd. separate the
Departments—you have given the Executive a share in
Legislation; and it is asked why not give a share to the judicial
power. Because the Judges are to interpret the Laws, and therefore
shd. have no share in making them—not so with the Executive
whose causing the Laws to be Executed is a ministerial office only.
Besides we have experienced in the Br. Constitution which confers
the Power of a negative on the Executive."—King's
Life
and Correspondence of Rufus King
, i., 592.
[pg 76]
An Objection of order being taken by M
Hamilton to the
introduction of the last amendment at this time, notice was given by M
W. & M
M., that the same w
be moved to-morrow,—whereupon
Wednesday (the day after) was assigned to reconsider the amendment of M
Gerry.
It was then moved & 2
ded
to proceed to the consideration of
the 9
th
resolution submitted by M
Randolph—when
on motion to agree to the first clause namely "Resolved, that a National
Judiciary be established," It passed in the affirmative nem. con.
It was then moved & 2
ded
to add these words to the first
clause of the ninth resolution namely—"to consist of one supreme
tribunal, and of one or more inferior tribunals," which passed in the
affirmative.
The Comm
then rose and the House Adjourned.
Tuesday June 5. In Committee of the whole
Governor Livingston from New Jersey, took his seat.
The words, "one or more" were struck out before "inferior tribunals" as an
amendment to the last
[pg 77]
clause of Resol
th
. The Clause—"that the
National Judiciary be chosen by the National Legislature," being under
consideration.
Wilson opposed the appointm
of Judges by the
National Legisl: Experience shewed the impropriety of such appointm
ts
by numerous bodies. Intrigue, partiality, and concealment were the
necessary consequences. A principal reason for unity in the Executive was
that officers might be appointed by a single, responsible person.
Rutlidge was by no means disposed to grant so great a power
to any single person. The people will think we are leaning too much
towards Monarchy. He was against establishing any national tribunal except
a single supreme one. The State tribunals are most proper to decide in all
cases in the first instance.
Doc
Franklin observed that two modes of chusing the Judges had
been mentioned, to wit, by the Legislature and by the Executive. He wished
such other modes to be suggested as might occur to other gentlemen; it
being a point of great moment. He would mention one which he had
understood was practised in Scotland. He then in a brief and entertaining
manner related a Scotch mode, in which the nomination proceeded from the
Lawyers, who always selected the ablest of the profession in order to get
rid of him, and share his practice among themselves. It was here he said
the interest of the electors to make the best choice, which should always
be made the case if possible.
Mr. Madison disliked the election of the Judges by the Legislature or any
numerous body. Besides the danger of intrigue and partiality, many of the
members were not judges of the requisite qualifications. The Legislative
talents which were very different from those of a Judge, commonly
recommended men to the favor of Legislative Assemblies. It was
[pg 78]
known
too that the accidental circumstances of presence and absence, of being a
member or not a member, had a very undue influence on the appointment. On
the other hand He was not satisfied with referring the appointment to the
Executive, He rather inclined to give it to the Senatorial branch, as
numerous eno' to be confided in—as not so numerous as to be
governed by the motives of the other branch; and as being sufficiently
stable and independent to follow their deliberate judgments. He hinted
this only and moved that the
appointment by the Legislature
might
be struck out, & a blank left to be hereafter filled on maturer
reflection. M
Wilson second it. On the question for striking
out, Mass
ts
ay. Con
no. N. Y. ay. N. J. ay.
Pen
ay. Del. ay. M
ay. V
ay.
N. C. ay. S. C. no. Geo. ay.
Mr. Wilson gave notice that he should at a future day move for a
reconsideration of that clause which respects "inferior tribunals."
Pinkney gave notice that when the clause respecting the
appointment of the Judiciary should again come before the Committee he
should move to restore the "appointment by the national Legislature."
The following clauses of Resol: 9. were agreed to viz "to hold their
offices during good behaviour, and to receive punctually at stated times,
a fixed compensation for their services, in which no increase or
diminution shall be made so as to affect the persons actually in office at
the time of such increase or diminution."
The remaining clause of Resolution 9. was postponed.
Resolution 10 was agreed to,—viz—that provision ought to be
made for the admission of States lawfully arising within the limits of the
U. States, whether from a voluntary junction of Government &
territory, or otherwise with the consent of a number of
[pg 79]
voices in the National Legislature less than the whole.
The 11. Propos: "
for guaranteeing to States Republican Gov
& territory
" &c. being read M
Patterson
[64]
wished the point of representation could be
decided before this clause should be considered, and moved to postpone it,
which was not opposed, and agreed to,—Connecticut & S. Carolina
only voting ag
st
it.
[64]
"M
Patterson is one of those kind of Men whose powers break in upon you,
and create wonder and astonishment. He is a Man of great modesty, with
looks that bespeak talents of no great extent,—but he is a
Classic, a Lawyer, and an Orator;—and of a disposition so
favorable to his advancement that every one seemed ready to exalt him
with their praises. He is very happy in the choice of time and manner
of engaging in a debate, and never speaks but when he understands his
subject well. This Gentleman is about 43 Y. of age, of a very low
stature."—Pierce's Notes,
Amer. Hist. Rev.
, iii.,
328.
Propos. 12 "
for continuing Cong
till a given day and for
fulfilling their engagements
," produced no debate.
On the question, Mass. ay. Con
no. N. Y. ay.
N. J.
[65]
ay. Pa. ay. Del. no.
ay. V
ay. N. C. ay. S. C. ay.
G. ay.
[65]
Note in
Madison's writing: New Jersey omitted in printed Journal.
Propos: 13. "that
provision ought to be made for hereafter amending the
system now to be established, without requiring the assent of the Nat
Legislature
", being taken up,
Pinkney doubted the propriety or necessity of it.
Gerry favored it. The novelty & difficulty of the
experiment requires periodical revision. The prospect of such a revision
would also give intermediate stability to the Gov
. Nothing had
yet happened in the States where this provision existed to prove its
impropriety.—The proposition was postponed for further
consideration: the votes being, Mas: Con. N. Y. P
Del.
Ma. N. C. ay. Virg
S. C. Geo. no.
Propos. 14. "
requiring oath from the State officers
[pg 80]
to
support National Gov
" was postponed after a short
uninteresting conversation: the votes. Con. N. Jersey M
Virg. S. C. Geo. ay. N. Y. P
Del. N. C. no.
Massachusetts divided.
Propos. 15. for "
recommending Conventions under appointment of the
people to ratify the new Constitution
" &c. being taken up,
Sherman thought such a popular ratification unnecessary: the
articles of Confederation providing for changes and alterations with the
assent of Cong
and ratification of State Legislatures.
Madison thought this provision essential. The articles of
Confed
themselves were defective in this respect, resting in
many of the States on the Legislative sanction only. Hence in conflicts
between acts of the States, and of Cong
especially where the
former are of posterior date, and the decision is to be made by State
tribunals, an uncertainty must necessarily prevail, or rather perhaps a
certain decision in favor of the State authority. He suggested also that
as far as the articles of Union were to be considered as a Treaty only of
a particular sort, among the Governments of Independent States, the
doctrine might be set up that a breach of any one article, by any of the
parties, absolved the other parties from the whole obligation. For these
reasons as well as others he thought it indispensable that the new
Constitution should be ratified in the most unexceptionable form, and by
the supreme authority of the people themselves.
Gerry observed that in the Eastern States the Confed
had been sanctioned by the people themselves. He seemed afraid of
referring the new system to them. The people in that quarter have at this
time the wildest ideas of Government in the world. They were for
abolishing the Senate in Mass
ts
and giving all the other powers
of Gov
to the other branch of the Legislature.
[pg 81]
King supposed that the last article of y
Confed
Rendered the legislature competent to the ratification. The people of the
Southern States where the federal articles had been ratified by the
Legislatures only, had since
impliedly
given their sanction to it.
He thought notwithstanding that there might be policy in varying the mode.
A Convention being a single house, the adoption may more easily be carried
thro' it, than thro' the Legislatures where there are several
branches. The Legislatures also being to lose power, will be most likely
to raise objections. The people having already parted with the necessary
powers it is immaterial to them, by which Government they are possessed,
provided they be well employed.
Wilson took this occasion to lead the Committee by a train
of observations to the idea of not suffering a disposition in the
plurality of States to confederate anew on better principles, to be
defeated by the inconsiderate or selfish opposition of a few States. He
hoped the provision for ratifying would be put on such a footing as to
admit of such a partial union, with a door open for the accession of the
rest.
[66]
[66]
(This hint
was probably meant in terrorem to the smaller States of N. Jersey
& Delaware. Nothing was said in reply to it.)—Madison's
Note.
Pinkney hoped that in case the experiment should not
unanimously take place, nine States might be authorized to unite under the
same Governm
The propos. 15. was postponed nem. con
Pinkney & M
Rutlidge moved that to-morrow be
assigned to reconsider that clause of Propos: 4: which respects the
election of the first branch of the National Legislature—which
passed in affirmative,—Con.: N. Y., P
Del. M
, ay.—6 Mas.: N. J.: N. C.: S. C.: Geo.:
no. 5.
Mr. Rutlidge hav
obtained a rule for reconsideration of the
clause for establishing
inferior
tribunals
[pg 82]
under the national
authority, now moved that that part of the clause in the propos. 9. should
be expunged: arguing that the State tribunals might and ought to be left
in all cases to decide in the first instance the right of appeal to the
supreme national tribunal being sufficient to secure the national rights
& uniformity of Judgm
ts
: that it was making an unnecessary
encroachment on the jurisdiction of the States and creating unnecessary
obstacles to their adoption of the new system. Mr. Sherman 2
ded
the motion.
Madison observed that unless inferior tribunals were
dispersed throughout the Republic with
final
jurisdiction in
many
cases, appeals would be multiplied to a most oppressive degree; that
besides, an appeal would not in many cases be a remedy. What was to be
done after improper Verdicts in State tribunals obtained under the biassed
directions of a dependent Judge, or the local prejudices of an undirected
jury? To remand the cause for a new trial would answer no purpose. To
order a new trial at the Supreme bar would oblige the parties to bring up
their witnesses, tho' ever so distant from the seat of the Court. An
effective Judiciary establishment commensurate to the legislative
authority, was essential. A Government without a proper Executive &
Judiciary would be the mere trunk of a body, without arms or legs to act
or move.
Wilson opposed the motion on like grounds. He said the
admiralty jurisdiction ought to be given wholly to the national
Government, as it related to cases not within the jurisdiction of
particular states, & to a scene in which controversies with foreigners
would be most likely to happen.
Sherman was in favor of the motion. He dwelt chiefly on the
supposed expensiveness of having a new set of Courts, when the existing
State Courts would answer the same purpose.
[pg 83]
Dickinson contended strongly that if there was to be a
National Legislature, there ought to be a national Judiciary, and that the
former ought to have authority to institute the latter.
On the question for M
Rutlidge's motion to strike out
"inferior tribunals"
Mass
ts
divided. Con
ay. N. Y. div
N. J. ay. P
no. Del. no. M
no.
no. N. C. ay. S. C. ay. Geo. ay.
Wilson & M
Madison then moved, in pursuance
of the idea expressed above by Mr. Dickinson, to add to the Resol: 9. the
words following "that the National Legislature be empowered to institute
inferior tribunals." They observed that there was a distinction between
establishing such tribunals absolutely, and giving a discretion to the
Legislature to establish or not establish them. They repeated the
necessity of some such provision.
Butler. The people will not bear such innovations. The
States will revolt at such encroachments. Supposing such an establishment
to be useful, we must not venture on it. We must follow the example of
Solon who gave the Athenians not the best Gov
he could devise,
but the best they w
receive.
King remarked as to the comparative expence, that the
establishment of inferior tribunals w
cost infinitely less
than the appeals that would be prevented by them.
On this question as moved by M
W. & M
M.
Mass. ay. C
no. N. Y. div
N. J.
[67]
ay. P
ay.
Del. ay. M
ay. V
ay. N. C. ay.
S. C. no. Geo. ay.
[67]
In printed
Journals N. Jersey, no.—Madison's Note.
The Committee then rose & the House adjourned to 11 OC tom
[pg 84]
Wednesday June 6
th
In Committee of the
Whole.
Pinkney according to previous notice & rule obtained,
moved "that the first branch of the national Legislature be elected by the
State Legislatures, and not by the people;" contending that the people
were less fit Judges in such a case, and that the Legislatures would be
less likely to promote the adoption of the new Government, if they were to
be excluded from all share in it.
Rutlidge 2
ded
the motion.
Gerry.
[68]
Much depends on the mode
of election. In England the people will probably lose their liberty from
the smallness of the proportion having a right of suffrage. Our danger
arises from the opposite extreme: hence in Mass
ts
the worst men
get into the Legislature. Several members of that Body had lately been
convicted of infamous crimes. Men of indigence, ignorance & baseness,
spare no pains, however dirty to carry their point ag
st
men who
are superior to the artifices practised. He was not disposed to run into
extremes. He was as much principled as ever ag
st
aristocracy
and monarchy. It was necessary on the one hand that the people should
appoint one branch of the Gov
in order to inspire them with
the necessary confidence. But he wished the election on the other to be so
modified as to secure more effectually a just preference of merit. His
idea was that the people should nominate certain persons in certain
districts, out of whom the State Legislatures sh
make the
appointment.
[68]
"Mr.
Gerry.—If the national legislature are appointed by the state
legislatures, demagogues and corrupt members will creep in."—Yates's
Secret Debates in Forming the Constitution
, 105.
Wilson. He wished for vigor in the Gov
, but he
wished that vigorous authority to flow immediately
[pg 85]
from the legitimate
source of all authority. The Gov
ought to possess not only 1
st
the
force
, but 2
dly
the
mind or sense
of the
people at large. The Legislature ought to be the most exact transcript of
the whole Society. Representation is made necessary only because it is
impossible for the people to act collectively. The opposition was to be
expected he said from the
Governments
, not from the Citizens of the
States. The latter had parted as was observed (by M
King) with
all the necessary powers; and it was immaterial to them, by whom they were
exercised, if well exercised. The State officers were to be the losers of
power. The people he supposed would be rather more attached to the
national Gov
than to the State Gov
ts
as being more
important in itself, and more flattering to their pride. There is no
danger of improper elections if made by
large
districts. Bad
elections proceed from the smallness of the districts which give an
opportunity to bad men to intrigue themselves into office.
Sherman. If it were in view to abolish the State Gov
ts
the elections ought to be by the people. If the State Gov
ts
are
to be continued, it is necessary in order to preserve harmony between the
National & State Gov
ts
that the elections to the former sh
be made by the latter. The right of participating in the National Gov
would be sufficiently secured to the people by their election of the State
Legislatures. The objects of the Union, he thought were few, 1. defence ag
st
foreign danger, 2. ag
st
internal disputes & a resort to
force, 3. Treaties with foreign nations 4. regulating foreign commerce,
& drawing revenue from it. These & perhaps a few lesser objects
alone rendered a Confederation of the States necessary. All other matters
civil & criminal would be much better in the hands of the States. The
people are more happy in small than in large States. States may indeed be
too small as Rhode Island, & thereby
[pg 86]
be too subject to
faction. Some others were perhaps too large, the powers of Gov
not being able to pervade them. He was for giving the General Gov
power to legislate and execute within a defined province.
Col. Mason. Under the existing Confederacy, Cong
represent the
States
and not the
people
of the States: their acts operate
on the
States
, not on the individuals. The case will be changed in
the new plan of Gov
. The people will be represented; they
ought therefore to choose the Representatives. The requisites in actual
representation are that the Rep
should sympathize with their
constituents; sh
think as they think, & feel as they feel;
and that for these purposes sh
even be residents among them.
Much he s
had been alledged ag
st
democratic
elections. He admitted that much might be said; but it was to be
considered that no Gov
was free from imperfections &
evils; and that improper elections in many instances were inseparable from
Republican Gov
ts
. But compare these with the advantage of this
Form in favor of the rights of the people, in favor of human nature. He
was persuaded there was a better chance for proper elections by the
people, if divided into large districts, than by the State Legislatures.
Paper money had been issued by the latter when the former were against it.
Was it to be supposed that the State Legislatures then w
not
send to the Nat
legislature patrons of such projects, if the
choice depended on them.
Madison considered an election of one branch at least of the
Legislature by the people immediately, as a clear principle of free Gov
and that this mode under proper regulations had the additional advantage
of securing better representatives, as well as of avoiding too great an
agency of the State Governments in the General one. He differed from the
member from Connecticut (Mr. Sherman) in thinking
[pg 87]
the objects mentioned to
be all the principal ones that required a National Gov
. Those
were certainly important and necessary objects; but he combined with them
the necessity of providing more effectually for the security of private
rights, and the steady dispensation of Justice. Interferences with these
were evils which had more perhaps than anything else, produced this
convention. Was it to be supposed that republican liberty could long exist
under the abuses of it practised in some of the States. The gentleman (M
Sherman) had admitted that in a very small State, faction & oppression
prevail. It was to be inferred then that wherever these
prevailed the State was too small. Had they not prevailed in the largest
as well as the smallest tho' less than in the smallest; and were we
not thence admonished to enlarge the sphere as far as the nature of the
Gov
would Admit. This was the only defence ag
st
the
inconveniences of democracy consistent with the democratic form of Gov
All civilized Societies would be divided into different Sects, Factions,
& interests, as they happened to consist of rich & poor, debtors
& creditors, the landed, the manufacturing, the commercial interests,
the inhabitants of this district or that district, the followers of this
political leader or that political leader—the disciples of this
religious Sect or that religious Sect. In all cases where a majority are
united by a common interest or passion, the rights of the minority are in
danger. What motives are to restrain them? A prudent regard to the maxim
that honesty is the best policy is found by experience to be as little
regarded by bodies of men as by individuals. Respect for character is
always diminished in proportion to the number among whom the blame or
praise is to be divided. Conscience, the only remaining tie is known to be
inadequate in individuals: In large numbers, little is to be expected from
it. Besides,
[pg 88]
Religion itself may become a motive to persecution & oppression. These
observations are verified by the Histories of every country antient &
modern. In Greece & Rome the rich & poor, the Creditors &
debtors, as well as the patricians & plebeians alternately oppressed
each other with equal unmercifulness. What a source of oppression was the
relation between the parent cities of Rome, Athens & Carthage, &
their respective provinces; the former possessing the power, & the
latter being sufficiently distinguished to be separate objects of it? Why
was America so justly apprehensive of Parliamentary injustice? Because G.
Britain had a separate interest real or supposed, & if her authority
had been admitted, could have pursued that interest at our expence. We
have seen the mere distinction of colour made in the most enlightened
period of time, a ground of the most oppressive dominion ever exercised by
man over man. What has been the source of those unjust laws complained of
among ourselves? Has it not been the real or supposed interest of the
major number? Debtors have defrauded their creditors. The landed interest
has borne hard on the mercantile interest. The Holders of one species of
property have thrown a disproportion of taxes on the holders of another
species. The lesson we are to draw from the whole is that where a majority
are united by a common sentiment, and have an opportunity, the rights of
the minor party become insecure. In a Republican Gov
the
majority if united have always an opportunity. The only remedy is to
enlarge the sphere, & thereby divide the community into so great a
number of interests & parties, that in the 1
st
place a
majority will not be likely at the same moment to have a common interest
separate from that of the whole or of the minority; and in the 2
place that in case they sh
have such an interest, they may not
be apt to unite in the
[pg 89]
pursuit of it. It was incumbent on us then to try this remedy, and with
that view to frame a republican system on such a scale & in such a
form as will controul all the evils w
ch
have been experienced.
Dickinson considered it essential that one branch of the
Legislature sh
be drawn immediately from the people; and as
expedient that the other sh
be chosen by the Legislatures of
the States. This combination of the State Gov
ts
with the
national Gov
was as politic as it was unavoidable. In the
formation of the Senate we ought to carry it through such a refining
process as will assimilate it as nearly as may be to the House of Lords in
England. He repeated his warm eulogiums on the British Constitution. He
was for a strong National Gov
but for leaving the States a
considerable agency in the System. The objection ag
st
making
the former dependent on the latter might be obviated by giving to the
Senate an authority permanent & irrevocable for three, five or seven
years. Being thus independent they will check & decide with becoming
freedom.
Read. Too much attachment is betrayed to the State Govern
ts
We must look beyond their continuance. A national Gov
must
soon of necessity swallow all of them up. They will soon be reduced to the
mere office of electing the National Senate. He was ag
st
patching up the old federal System: he hoped the idea w
be
dismissed. It would be like putting new cloth on an old garment. The
confederation was founded on temporary principles. It cannot last: it can
not be amended. If we do not establish a good Gov
on new
principles, we must either go to ruin, or have the work to do over again.
The people at large are wrongly suspected of being averse to a Gen
Gov
. The aversion lies among interested men who possess their
confidence.
Pierce
[69]
was for an election by
the people as to
[pg 90]
the 1
st
branch & by the States as to the 2
branch; by which means the Citizens of the States w
be
represented both
individually
collectively
[69]
"My own
character I shall not attempt to draw, but leave those who may choose
to speculate on it, to consider it in any light that their fancy or
imagination may depict. I am conscious of having discharged my duty as
a Soldier through the course of the late revolution with honor and
propriety; and my services in Congress and the Convention were
bestowed with the best intention towards the interest of Georgia, and
towards the general welfare of the Confederacy. I possess ambition,
and it was that, and the flattering opinion which some of my Friends
had of me, that gave me a seat in the wisest Council in the World, and
furnished me with an opportunity of giving these short Sketches of the
Characters who composed it."—Pierce's Notes,
Amer. Hist.
Rev.
, iii., 334.
General Pinkney wished to have a good National Gov
& at
the same time to leave a considerable share of power in the States. An
election of either branch by the people scattered as they are in many
States, particularly in S. Carolina was totally impracticable. He
differed from gentlemen who thought that a choice by the people w
be a better guard ag
st
bad measures, than by the Legislatures.
A majority of the people in S. Carolina were notoriously for
paper-money as a legal tender; the Legislature had refused to make it a
legal tender. The reason was that the latter had some sense of character
and were restrained by that consideration. The State Legislatures also he
said would be more jealous, & more ready to thwart the National Gov
if excluded from a participation in it. The Idea of abolishing these
Legislatures w
never go down.
Wilson would not have spoken again, but for what had fallen
from Mr. Read; namely, that the idea of preserving the State Gov
ts
ought to be abandoned. He saw no incompatibility between the national
& State Gov
ts
provided the latter were restrained to
certain local purposes; nor any probability of their being devoured by the
former. In all confederated Systems antient & modern the reverse
[pg 91]
had
happened; the Generality being destroyed gradually by the usurpations of
the parts composing it.
On the question for electing the 1
st
branch by the State
Legislatures as moved by M
Pinkney: it was negatived:
Mass. no. C
ay. N. Y. no. N. J. ay.
no. Del. no. M
no. V
no.
N. C. no. S. C. ay. Geo. no.
Wilson moved to reconsider the vote excluding the Judiciary
from a share in the revision of the laws, and to add after "National
Executive" the words "with a convenient number of the national Judiciary;"
remarking the expediency of reinforcing the Executive with the influence
of that Department.
Madison 2
ded
the motion. He observed that the
great difficulty in rendering the Executive competent to its own defence
arose from the nature of Republican Gov
which could not give
to an individual citizen that settled pre-eminence in the eyes of the
rest, that weight of property, that personal interest ag
st
betraying the national interest, which appertain to an hereditary
magistrate. In a Republic personal merit alone could be the ground of
political exaltation, but it would rarely happen that this merit would be
so pre-eminent as to produce universal acquiescence. The Executive
Magistrate would be envied & assailed by disappointed competitors: His
firmness therefore w
need support. He would not possess those
great emoluments from his station, nor that permanent stake in the public
interest which w
place him out of the reach of foreign
corruption. He would stand in need therefore of being controuled as well
as supported. An association of the Judges in his revisionary function w
both double the advantage and diminish the danger. It w
also
enable the Judiciary Department
[pg 92]
the better to defend itself ag
st
Legislative encroachments. Two objections had been made 1
st
that the Judges ought not to be subject to the bias which a participation
in the making of laws might give in the exposition of them. 2
dly
that the Judiciary Departm
ought to be separate & distinct
from the other great Departments. The 1
st
objection had some
weight; but it was much diminished by reflecting that a small proportion
of the laws coming in question before a Judge w
be such
wherein he had been consulted; that a small part of this proportion w
be so ambiguous as to leave room for his prepossessions; and that but a
few cases w
probably arise in the life of a Judge under such
ambiguous passages. How much good on the other hand w
proceed
from the perspicuity, the conciseness, and the systematic character w
ch
the Code of laws w
receive from the Judiciary talents. As to
the 2
objection, it either had no weight, or it applied with
equal weight to the Executive & to the Judiciary revision of the laws.
The maxim on which the objection was founded required a separation of the
Executive as well as the Judiciary from the Legislature & from each
other. There w
in truth however be no improper mixture of
these distinct powers in the present case. In England, whence the maxim
itself had been drawn, the Executive had an absolute negative on the laws;
and the Supreme tribunal of Justice (the House of Lords) formed one of the
other branches of the Legislature. In short whether the object of the
revisionary power was to restrain the Legislature from encroaching on the
other co-ordinate Departments, or on the rights of the people at large; or
from passing laws unwise in their principle, or incorrect in their form,
the utility of annexing the wisdom and weight of the Judiciary to the
Executive seemed incontestable.
Gerry thought the Executive, whilst standing
[pg 93]
alone
be more impartial than when he c
be covered by
the sanction & seduced by the sophistry of the Judges.
King. If the Unity of the Executive was preferred for the
sake of responsibility, the policy of it is as applicable to the
revisionary as to the executive power.
Pinkney had been at first in favor of joining the heads of
the principal departm
ts
the Secretary at War, of foreign
affairs &c—in the council of revision. He had however
relinquished the idea from a consideration that these could be called on
by the Executive Magistrate whenever he pleased to consult them. He was
opposed to the introduction of the Judges into the business.
Col. Mason was for giving all possible weight to the revisionary
institution. The Executive power ought to be well secured ag
st
Legislative usurpations on it. The purse & the sword ought never to
get into the same hands whether Legislative or Executive.
Dickinson. Secrecy, vigor & despatch are not the
principal properties req
in the Executive. Important as these
are, that of responsibility is more so, which can only be preserved; by
leaving it singly to discharge its functions. He thought too a junction of
the Judiciary to it, involved an improper mixture of powers.
Wilson remarked, that the responsibility required belonged
to his Executive duties. The revisionary duty was an extraneous one,
calculated for collateral purposes.
Williamson, was for substituting a clause requiring 2/3 for
every effective act of the Legislature, in place of the revisionary
provision.
On the question for joining the Judges to the Executive in the revisionary
business,
Mass. no. Con
ay. N. Y. ay. N. J. no.
no.
[pg 94]
Del. no. M
no. V
ay. N. C. no.
S. C. no. Geo. no.
Pinkney gave notice that tomorrow he should move for the
reconsideration of that clause in the sixth Resolution adopted by the Comm
which vests a negative in the National Legislature on the laws of the
several States.
The Com
rose & the House adj
to 11 OC.
Thursday June 7
th
1787—In Committee
of the whole
Pinkney according to notice moved to reconsider the clause
respecting the negative on State laws, which was agreed to, and tomorrow
for fixed the purpose.
The Clause providing for y
appointment of the 2
branch of the national Legislature, having lain blank since the last vote
on the mode of electing it, to wit, by the 1
st
branch, M
Dickinson now moved "that the members of the 2
branch ought to
be chosen by the individual Legislatures."
Sherman seconded the motion; observing that the particular
States would thus become interested in supporting the National Govenm
and that a due harmony between the two Governments would be maintained. He
admitted that the two ought to have separate and distinct jurisdictions,
but that they ought to have a mutual interest in supporting each other.
Pinkney. If the small States should be allowed one Senator
only, the number will be too great, there will be 80 at least.
Dickinson had two reasons for his motion. 1, because the
sense of the States would be better collected through their Governments;
than immediately from the people at large; 2. because he
[pg 95]
wished the Senate to consist of the most distinguished characters,
distinguished for their rank in life and their weight of property, and
bearing as strong a likeness to the British House of Lords as possible;
and he thought such characters more likely to be selected by the State
Legislatures, than in any other mode. The greatness of the number was no
objection with him. He hoped there would be 80 and twice 80. of them. If
their number should be small, the popular branch could not be balanced by
them. The legislature of a numerous people ought to be a numerous body.
Williamson, preferred a small number of Senators, but wished
that each State should have at least one. He suggested 25 as a convenient
number. The different modes of representation in the different branches,
will serve as a mutual check.
Butler was anxious to know the ratio of representation
before he gave any opinion.
Wilson. If we are to establish a national Government, that
Government ought to flow from the people at large. If one branch of it
should be chosen by the Legislatures, and the other by the people, the two
branches will rest on different foundations, and dissensions will
naturally arise between them. He wished the Senate to be elected by the
people as well as the other branch, the people might be divided into
proper districts for the purpose & moved to postpone the motion of M
Dickinson, in order to take up one of that import.
Morris 2
ded
him.
Read proposed "that the Senate should be appointed by the
Executive Magistrate out of a proper number of persons to be nominated by
the individual legislatures." He said he thought it his duty, to speak his
mind frankly. Gentlemen he hoped would not be alarmed at the idea. Nothing
short of this approach towards a proper model of
[pg 96]
Government would answer
the purpose, and he thought it best to come directly to the point at once.—His
proposition was not seconded nor supported.
Madison, if the motion (of Mr. Dickinson) should be agreed
to, we must either depart from the doctrine of proportional
representation; or admit into the Senate a very large number of members.
The first is inadmissible, being evidently unjust. The second is
inexpedient. The use of the Senate is to consist in its proceeding with
more coolness, with more system, & with more wisdom, than the popular
branch. Enlarge their number and you communicate to them the vices which
they are meant to correct. He differed from M
D. who thought
that the additional number would give additional weight to the body. On
the contrary it appeared to him that their weight would be in an inverse
ratio to their number. The example of the Roman Tribunes, was applicable.
They lost their influence and power, in proportion as their number was
augmented. The reason seemed to be obvious: They were appointed to take
care of the popular interests & pretensions at Rome, because the
people by reason of their numbers could not act in concert; were liable to
fall into factions among themselves, and to become a prey to their
aristocratic adversaries. The more the representatives of the people
therefore were multiplied, the more they partook of the infirmities of
their constituents, the more liable they became to be divided among
themselves either from their own indiscretions or the artifices of the
opposite faction, and of course the less capable of fulfilling their
trust. When the weight of a set of men depends merely on their personal
characters; the greater the number the greater the weight. When it depends
on the degree of political authority lodged in them the smaller the number
the greater the weight. These considerations might
[pg 97]
perhaps be combined in
the intended Senate; but the latter was the material one.
Gerry. 4 modes of appointing the Senate have been mentioned.
1. by the 1
st
branch of the National Legislature. This would
create a dependance contrary to the end proposed. 2. by the National
Executive. This is a stride towards monarchy that few will think of. 3. by
the people. The people have two great interests, the landed interest, and
the commercial including the stockholders. To draw both branches from the
people will leave no security to the latter interest; the people being
Chiefly composed of the landed interest, and erroneously supposing, that
the other interests are adverse to it. 4. by the Individual Legislatures.
The elections being carried thro' this refinement, will be most likely
to provide some check in favor of the Commercial interest ag
st
the landed; without which oppression will take place, and no free Gov
can last long where that is the case. He was therefore in favor of this
last.
Dickenson.
[70]
The preservation of the
States in a certain degree of agency is indispensable. It will produce
that collision between the different authorities which should be wished
for in order to check each other. To attempt to abolish the States
altogether, would degrade the Councils of our Country, would be
impracticable, would be ruinous. He compared the proposed National System
to the Solar System, in which the States were the planets, and ought to be
left to move freely in their proper orbits. The Gentleman from P
(M
Wilson)
[70]
It will
throw light on this discussion to remark that an election by the State
Legislatures involved a surrender of the principle insisted on by the
large States & dreaded by the small ones, namely that of a
proportional representation in the Senate. Such a rule w
make the body too numerous, as the smallest State must elect one
member at least.—Madison's Note.
[pg 98]
wished he said to extinguish these planets. If the State Governments were
excluded from all agency in the national one, and all power drawn from the
people at large, the consequence would be that the national Gov
would move in the same direction as the State Gov
ts
now do, and
would run into all the same mischiefs. The reform would only unite the 13
small streams into one great current pursuing the same course without any
opposition whatever. He adhered to the opinion that the Senate ought to be
composed of a large number, and that their influence from family weight
& other causes would be increased thereby. He did not admit that the
Tribunes lost their weight in proportion as their n
was
augmented and gave a historical sketch of this institution. If the
reasoning of (M
Madison) was good it would prove that the
number of the Senate ought to be reduced below ten, the highest n
of the Tribunitial corps.
Wilson. The subject it must be owned is surrounded with
doubts and difficulties. But we must surmount them. The British Governm
cannot be our model. We have no materials for a similar one. Our manners,
our laws, the abolition of entails and of primogeniture, the whole genius
of the people, are opposed to it. He did not see the danger of the States
being devoured by the Nation
Gov
. On the contrary,
he wished to keep them from devouring the national Gov
. He was
not however for extinguishing these planets as was supposed by Mr. D.—neither
did he on the other hand, believe that they would warm or enlighten the
Sun. Within their proper orbits they must still be suffered to act for
subordinate purposes, for which their existence is made essential by the
great extent of our Country. He could not comprehend in what manner the
landed interest w
be rendered less predominant in the Senate,
by an election through the
[pg 99]
medium of the Legislatures than by the
people themselves. If the Legislatures, as was now complained, sacrificed
the commercial to the landed interest, what reason was there to expect
such a choice from them as would defeat their own views. He was for an
election by the people in large districts which w
be most
likely to obtain men of intelligence & uprightness; subdividing the
districts only for the accommodation of voters.
Madison could as little comprehend in what manner family
weight, as desired by M
D. would be more certainly conveyed
into the Senate through elections by the State Legislatures, than in some
other modes. The true question was in what mode the best choice w
be made? If an election by the people, or thro' any other channel than
the State Legislatures promised as uncorrupt & impartial a preference
of merit, there could surely be no necessity for an appointment by those
Legislatures. Nor was it apparent that a more useful check would be
derived thro' that channel than from the people thro' some other.
The great evils complained of were that the State Legislatures run into
schemes of paper money &c. whenever solicited by the people, &
sometimes without even the sanction of the people. Their influence then,
instead of checking a like propensity in the National Legislature, may be
expected to promote it. Nothing can be more contradictory than to say that
the Nat
Legislature with
a proper check, will
follow the example of the State Legislatures, & in the same breath,
that the State Legislatures are the only proper check.
Sherman opposed elections by the people in districts, as not
likely to produce such fit men as elections by the State Legislatures.
Gerry insisted that the commercial & monied interest w
be more secure in the hands of the State Legislatures, than of the people
at large. The
[pg 100]
former have more sense of character, and will be restrained by that from
injustice. The people are for paper money when the Legislatures are ag
st
it. In Mass
ts
the County Conventions had declared a wish for a
depreciating
paper that w
sink itself. Besides, in some
States there are two Branches in the Legislature, one of which is somewhat
aristocratic. There w
therefore be so far a better chance of
refinement in the choice. There seemed, he thought to be three powerful
objections ag
st
elections by districts, 1. it is impracticable;
the people cannot be brought to one place for the purpose; and whether
brought to the same place or not, numberless frauds w
be
unavoidable. 2. small States forming part of the same district with a
large one, or large part of a large one, w
have no chance of
gaining an appointment for its citizens of merit. 3 a new source of
discord w
be opened between different parts of the same
district.
Pinkney thought the 2
branch ought to be
permanent & independent; & that the members of it w
be
rendered more so by receiving their appointment from the State
Legislatures. This mode w
avoid the rivalships &
discontents incident to the election by districts. He was for dividing the
States into three classes according to their respective sizes, & for
allowing to the 1
st
class three members, to the 2
two, & to the 3
one.
On the question for postponing M
Dickinson's motion
referring the appointment of the Senate to the State Legislatures, in
order to consider M
Wilson's for referring it to the
people.
Mass. no. Con
no. N. Y. no. N. J. no.
ay. Del. no. M
no. V
no.
N. C. no. S. C. no. Geo. no.
Col. Mason. Whatever power may be necessary for the Nat
Gov
a certain portion must necessarily be left in the States. It is impossible
for one power to pervade the extreme parts of the U. S. so
[pg 101]
as
to carry equal justice to them. The State Legislatures also ought to have
some means of defending themselves ag
st
encroachments of the
Nat
Gov
. In every other department we have
studiously endeavoured to provide for its self-defence. Shall we leave the
States alone unprovided with the means for this purpose? And what better
means can we provide than the giving them some share in, or rather to make
them a constituent part of, the Nat
Establishment. There is
danger on both sides no doubt; but we have only seen the evils arising on
the side of the State Gov
ts
. Those on the other side remain to
be displayed. The example of Cong
does not apply. Cong
had no power to carry their acts into execution, as the Nat
Gov
will have.
On M
Dickinson's motion for an appointment of the Senate
by the State Legislatures,
Mass. ay. C
ay. N. Y. ay. P
ay.
Del. ay. M
ay. V
ay. N. C. ay.
S. C. ay. Geo. ay.
Gerry gave notice that he w
tomorrow move for a
reconsideration of the mode of appointing the Nat
Executive in
order to substitute an appointm
by the State Executives.
The Committee rose & The House adj
Friday June 8
th
In Committee of the Whole.
On a reconsideration of the clause giving the Nat
Legislature
a negative on such laws of the States as might be contrary to the articles
of Union, or Treaties with foreign nations,
Pinkney moved "that the National Legislature sh
have authority to negative all laws which they sh
judge to be
improper." He urged that such a universality of the power was
indispensably necessary to render it effectual; that the States must be
kept in due subordination to the nation; that if the
[pg 102]
States were left to
act of themselves in any case, it w
be impossible to defend
the national prerogatives, however extensive they might be on paper; that
the acts of Congress had been defeated by this means; nor had foreign
treaties escaped repeated violations: that this universal negative was in
fact the corner stone of an efficient national Gov
; that under
the British Gov
the negative of the Crown had been found
beneficial, and the
States
are more one nation now, than the
Colonies
were then.
Madison seconded the motion. He could not but regard an
indefinite power to negative legislative acts of the States as absolutely
necessary to a perfect System. Experience had evinced a constant tendency
in the States to encroach on the federal authority; to violate national
Treaties; to infringe the rights & interests of each other; to oppress
the weaker party within their respective jurisdictions. A negative was the
mildest expedient that could be devised for preventing these mischiefs.
The existence of such a check would prevent attempts to commit them.
Should no such precaution be engrafted, the only remedy w
lie
in an appeal to coercion. Was such a remedy eligible? was it practicable?
Could the national resources, if exerted to the utmost enforce a national
decree ag
st
Mass
ts
abetted perhaps by several of her
neighbours? It w
not be possible. A small proportion of the
Community, in a compact situation acting on the defensive, and at one of
its extremities, might at any time bid defiance to the National authority.
Any Gov
for the U. States formed on the supposed
practicability of using force ag
st
the unconstitutional
proceedings of the States, w
prove as visionary &
fallacious as the Gov
of Cong
. The negative w
render the use of force unnecessary. The States c
of
themselves pass no operative act, any more than one branch of a
Legislature where there are two branches, can proceed
[pg 103]
without the other.
But in order to give the negative this efficacy, it must extend to all
cases. A discrimination w
only be a fresh source of contention
between the two authorities. In a word, to recur to the illustrations
borrowed from the planetary system. This prerogative of the General Gov
is the great pervading principle that must controul the centrifugal
tendency of the States; which, without it, will continually fly out of
their proper orbits and destroy the order & harmony of the political
System.
Williamson was ag
st
giving a power that might
restrain the States from regulating their internal police.
Gerry c
not see the extent of such a power, and
was ag
st
every power that was not necessary. He thought a
remonstrance ag
st
unreasonable acts of the States w
reclaim them. If it sh
not force might be resorted to. He had
no objection to authorize a negative to paper money and similar measures.
When the confederation was depending before Congress, Massachusetts was
then for inserting the power of emitting paper money am
the
exclusive powers of Congress. He observed that the proposed negative w
extend to the regulations of the Militia, a matter on which the existence
of a State might depend. The Nat
Legislature with such a power
may enslave the States. Such an idea as this will never be acceded to. It
has never been suggested or conceived among the people. No speculative
projector, and there are eno' of that character among us, in politics
as well as in other things, has in any pamphlet or newspaper thrown out
the idea. The States too have different interests and are ignorant of each
other's interests. The Negative therefore will be abused. New States
too having separate views from the old States will never come into the
Union. They may even be under some foreign influence;
[pg 104]
are they in such case
to participate in the negative on the will of the other States?
Sherman thought the cases in which the negative ought to be
exercised, might be defined. He wished the point might not be decided till
a trial at least sh
be made for that purpose.
Wilson would not say what modifications of the proposed
power might be practicable or expedient. But however novel it might appear
the principle of it when viewed with a close & steady eye, is right.
There is no instance in which the laws say that the individual sh
be bound in one case, & at liberty to judge whether he will obey or
disobey in another. The cases are parallel. Abuses of the power over the
individual person may happen as well as over the individual States.
Federal liberty is to the States, what civil liberty, is to private
individuals, and States are not more unwilling to purchase it, by the
necessary concession of their political sovereignty, than the savage is to
purchase Civil liberty by the surrender of the personal sovereignty, which
he enjoys in a State of nature. A definition of the cases in which the
Negative should be exercised, is impracticable. A discretion must be left
on one side or the other? will it not be most safely lodged on the side of
the Nat
Gov
? Among the first sentiments expressed
in the first Cong
one was that Virg
is no more,
that Mass
ts
is no [more], that P
is no more &c.
We are now one nation of brethren. We must bury all local interests &
distinctions. This language continued for some time. The tables at length
began to turn. No sooner were the State Gov
ts
formed than their
jealousy & ambition began to display themselves. Each endeavoured to
cut a slice from the common loaf, to add to its own morsel, till at length
the confederation became frittered down to the impotent condition in which
it now stands. Review the progress of the articles of Confederation
[pg 105]
thro' Congress & compare the first & last draught of it. To
correct its vices is the business of this convention. One of its vices is
the want of an effectual controul in the whole over its parts. What danger
is there that the whole will unnecessarily sacrifice a part? But reverse
the case, and leave the whole at the mercy of each part, and will not the
general interest be continually sacrificed to local interests?
Dickenson deemed it impossible to draw a line between the
cases proper & improper for the exercise of the negative. We must take
our choice of two things. We must either subject the States to the danger
of being injured by the power of the Nat
Gov
or
the latter to the danger of being injured by that of the States. He
thought the danger greater from the States. To leave the power doubtful,
would be opening another spring of discord, and he was for shutting as
many of them as possible.
Bedford, in answer to his colleague's question, where w
be the danger to the States from this power, would refer him to the
smallness of his own State which may be injured at pleasure without
redress. It was meant he found to strip the small States of their equal
right of suffrage. In this case Delaware would have about 1/90 for its
share in the General Councils, whilst P
& V
would possess 1/3 of the whole. Is there no difference of interests, no
rivalship of commerce, of manufactures? Will not these large States crush
the small ones whenever they stand in the way of their ambitious or
interested views. This shews the impossibility of adopting such a system
as that on the table, or any other founded on a change in the priñple of
representation. And after all, if a State does not obey the law of the new
System, must not force be resorted to as the only ultimate remedy, in this
as in any other system. It seems as if P
& V
by the conduct of their deputies wished to
[pg 106]
provide a system in
which they would have an enormous & monstrous influence. Besides, How
can it be thought that the proposed negative can be exercised? Are the
laws of the States to be suspended in the most urgent cases until they can
be sent seven or eight hundred miles, and undergo the deliberation of a
body who may be incapable of Judging of them? Is the National Legislature
too to sit continually in order to revise the laws of the States?
Madison observed that the difficulties which had been
started were worthy of attention and ought to be answered before the
question was put. The case of laws of urgent necessity must be provided
for by some emanation of the power from the Nat
Gov
into each State so far as to give a temporary assent at least. This was
the practice in the Royal Colonies before the Revolution and would not
have been inconvenient if the supreme power of negativing had been
faithful to the American interest, and had possessed the necessary
information. He supposed that the negative might be very properly lodged
in the senate alone, and that the more numerous & expensive branch
therefore might not be obliged to sit constantly. He asked M
B. what would be the consequence to the small States of a dissolution of
the Union w
ch
seemed likely to happen if no effectual
substitute was made for the defective System existing, and he did not
conceive any effectual system could be substituted on any other basis than
that of a proportional suffrage? If the large States possessed the Avarice
& ambition with which they were charged, would the small ones in their
neighbourhood, be more secure when all controul of a Gen
Gov
was withdrawn.
Butler was vehement ag
st
the Negative in the
proposed extent, as cutting off all hope of equal justice to the distant
States. The people there would not he was sure give it a hearing.
[pg 107]
On the question for extending the negative power to all cases as proposed
by (M
P. & M
M.) Mass. ay. Con
no.
N. Y. no. N. J. no. P
ay. Del. div
Read & M
Dickenson ay. M
Bedford
& M
Basset no. Mary
no. V
ay.
R. M
Mason no. M
Blair, Doc
M. ay. Gen
W.
not consulted. N. C. no. S. C. no. Geo no.
On motion of M
Gerry and M
King tomorrow was
assigned for reconsidering the mode of appointing the National Executive:
the reconsideration being voted for by all the States except Connecticut
& N. Carolina.
Pinkney and M
Rutlidge moved to add to the Resol
4. agreed to by the Com
the following, viz. "that the States
be divided into three classes, the 1
st
class to have 3 members,
the 2
two, & the 3
one member each, that an
estimate be taken of the comparative importance of each State at fixed
periods, so as to ascertain the number of members they may from time to
time be entitled to." The Committee then rose and the House adjourned.
Saturday June 9
th
[71]
Mr. Luther Martin from Maryland took his seat. In Committee of the Whole.
[71]
Edward
Carrington wrote to Jefferson from New York, June 9,1787:
"The debates and proceedings of the Convention are kept in profound
secrecy—opinions of the probable result of their deliberations
can only be formed from the prevailing impressions of men of
reflection and understanding—these are reducible to two
schemes—the first, a consolidation of the whole Empire into
one republic, leaving in the States nothing more than subordinate
courts for facilitating the administration of the Laws—the
second an investiture of the fœderal sovereignty with full and
independent authority as to the Trade, Revenues, and forces of the
union, and the rights of peace and war, together with a negative
upon all the acts of the State legislatures.
The first idea, I apprehend, would be impracticable, and therefore
do not suppose it can be adopted—general Laws through a
Country embracing so many climates, productions, and manners as the
United States, would operate many oppressions & a general
legislature would be found incompetent to the formation of local
ones, as a majority would in every instance, be ignorant of, and
unaffected by the objects of legislation.... Something like the
second will probably be formed—indeed I am certain that
nothing less than what will give the fœderal sovereignty a
compleat controul over the state Governments, will be thought worthy
of discussion—such a scheme constructed upon well adjusted
principles would certainly give us stability and importance as a
nation, and if the Executive powers can be sufficiently checked,
must be eligible—unless the whole has a decided influence over
the parts, the constant effort will be to resume the delegated
powers, and there cannot be an inducement in the fœderal
sovereignty to refuse its assent to an innocent act of a State....
The Eastern opinions are for a total surrender of the state
Sovereignties, and indeed some amongst them go to a monarchy at once—they
have verged to anarchy, while to the southward we have only felt an
inconvenience, and their proportionate disposition to an opposite
extreme is a natural consequence."—
Jeff. MSS.
Gerry, according to previous notice given by him, moved
"that the national Executive should
[pg 108]
be elected by the Executives of the
States whose proportion of votes should be the same with that allowed to
the States in the election of the Senate." If the appointm
should be made by the Nat
Legislature, it would lessen that
independence of the Executive which ought to prevail, would give birth to
intrigue and corruption between the Executive & Legislature previous
to the election, and to partiality in the Executive afterwards to the
friends who promoted him. Some other mode therefore appeared to him
necessary. He proposed that of appointing by the State Executives as most
analogous to the principle observed in electing the other branches of the
Nat
Gov
; the first branch being chosen by the
people
of the States, & the 2
by the Legislatures of the States,
he did not see any objection ag
st
letting the Executive be
appointed by the Executives of the States. He supposed the Executives
would be most likely to select the fittest men, and that it would be their
interest to support the man of their own choice.
[pg 109]
Randolph urged strongly the inexpediency of M
Gerry's mode of appointing the Nat
Executive. The
confidence of the people would not be secured by it to the Nat
magistrate. The small States would lose all chance of an appointm
from within themselves. Bad appointments would be made; the Executives of
the States being little conversant with characters not within their own
small spheres. The State Executives too notwithstanding their
constitutional independence, being in fact dependent on the State
Legislatures will generally be guided by the views of the latter, and
prefer either favorites within the States, or such as it may be expected
will be most partial to the interests of the State. A Nat
Executive thus chosen will not be likely to defend with becoming vigilance
& firmness the National rights ag
st
State encroachments.
Vacancies also must happen. How can these be filled? He could not suppose
either that the Executives would feel the interest in supporting the Nat
Executive which had been imagined. They will not cherish the great Oak
which is to reduce them to paltry shrubs.
On the question for referring the appointment of the Nat
Executive to the State Executives as prop
by M
Gerry Mass
ts
no. Con
no. N. Y. no.
N. J. no. P
no. Del. div
. M
no.
no. S. C. no. Geo. no.
[72]
[72]
"Carried
against the motion, 10 noes, and Delaware divided."—Yates,
Secret
Proceedings
, etc., 111. The Journal also includes North Carolina
among the noes.—
Journal of the Federal Convention
, 110.
Patterson moves that the Committee resume the clause
relating to the rule of suffrage in the Nat
Legislature.
Brearly
[73]
seconds him. He was sorry
he said
[pg 110]
that any question on this point was brought into view. It had been much
agitated in Cong
at the time of forming the Confederation, and
was then rightly settled by allowing to each sovereign State an equal
vote. Otherwise the smaller States must have been destroyed instead of
being saved. The substitution of a ratio, he admitted carried fairness on
the face of it; but on a deeper examination was unfair and unjust. Judging
of the disparity of the States by the quota of Cong
, Virg
would have 16 votes, and Georgia but one. A like proportion to the others
will make the whole number ninety. There will be 3 large states, and 10
small ones. The large States by which he meant Mass
ts
Pen
& Virg
will carry every thing before them. It had been
admitted, and was known to him from facts within N. Jersey that where
large & small counties were united into a district for electing
representatives for the district, the large counties always carried their
point, and Consequently that the large States would do so. Virg
with her sixteen votes will be a solid column indeed, a formidable
phalanx. While Georgia with her Solitary vote, and the other little States
will be obliged to throw themselves constantly into the scale of some
large one, in order to have any weight at all. He had come to the
convention with a view of being as useful as he could in giving energy and
stability to the federal Government. When the proposition for destroying
the equality of votes came forward, he was astonished, he was alarmed. Is
it fair then it will be asked that Georgia should have an equal vote with
Virg
. He would not say it was. What remedy then? One only,
that a map of the U. S. be spread out, that all the existing
boundaries be erased, and that a new partition of the whole be made into
13 equal parts.
[73]
"Mr.
Brearly is a man of good, rather than of brilliant parts. He is a
Judge of the Supreme Court of New Jersey, and is very much in the
esteem of the people. As an Orator he has little to boast of, but as a
Man he has every virtue to recommend him. Mr. Brearly is about 40
years of age."—Pierce's Notes,
Am. Hist. Rev.
, iii.,
327.
[pg 111]
Patterson considered the proposition for a proportional
representation as striking at the existence of the lesser States. He w
premise however to an investigation of this question some remarks on the
nature structure and powers of the Convention. The Convention he said was
formed in pursuance of an Act of Cong
that this act was
recited in several of the Commissions, particularly that of Mass
ts
which he required to be read: that the amendment of the Confederacy was
the object of all the laws and Commissions on the subject: that the
articles of the Confederation were therefore the proper basis of all the
proceedings of the Convention. We ought to keep within its limits, or we
should be charged by our Constituents with usurpation, that the people of
America were sharpsighted and not to be deceived. But the Commissions
under which we acted were not only the measure of our power, they denoted
also the sentiments of the States on the subject of our deliberation. The
idea of a National Gov
as contradistinguished from a federal
one, never entered into the mind of any of them, and to the public mind we
must accommodate ourselves. We have no power to go beyond the federal
Scheme, and if we had the people are not ripe for any other. We must
follow the people; the people will not follow us.—The
proposition
could not be maintained whether considered in reference to us as a nation,
or as a confederacy. A confederacy supposes sovereignty in the members
composing it & sovereignty supposes equality. If we are to be
considered as a nation, all State distinctions must be abolished, the
whole must be thrown into hotchpot, and when an equal division is made,
then there may be fairly an equality of representation. He held up Virg
Mass
ts
& P
as the three large States, and the
other ten as small ones; repeating the calculations of M
Brearly, as to the disparity of votes which w
take place, and
affirming
[pg 112]
that the small States would never agree to it. He said there was no more
reason that a great individual State contributing much, should have more
votes than a small one contributing little, than that a rich individual
citizen should have more votes than an indigent one. If the rateable
property of A was to that of B as 40 to 1, ought A for that reason to have
40 times as many votes as B. Such a principle would never be admitted, and
if it were admitted would put B entirely at the mercy of A. As A has more
to be protected than B so he ought to contribute more for the common
protection. The same may be said of a large State w
ch
has more
to be protected than a small one. Give the large States an influence in
proportion to their magnitude, and what will be the consequence? Their
ambition will be proportionally increased, and the small States will have
every thing to fear. It was once proposed by Galloway & some others
that America should be represented in the British Parl
and
then be bound by its laws. America could not have been entitled to more
than 1/3 of the n
of Representatives which would fall to the
share of G. B. Would American rights & interests have been safe under
an authority thus constituted? It has been said that if a Nat
Gov
is to be formed so as to operate on the people, and not on
the States, the representatives ought to be drawn from the people. But why
so? May not a Legislature filled by the State Legislatures operate on the
people who chuse the State Legislatures? or may not a practicable coercion
be found. He admitted that there was none such in the existing System.—He
was attached strongly to the plan of the existing Confederacy, in which
the people chuse their Legislative representatives; and the Legislatures
their federal representatives. No other amendments were wanting than to
mark the orbits of the States with due precision, and provide for the use
of
[pg 113]
coercion, which was the great point. He alluded to the hint thrown out
heretofore by M
Wilson of the necessity to which the large
States might be reduced of confederating among themselves, by a refusal of
the others to concur. Let them unite if they please, but let them remember
that they have no authority to compel the others to unite. N. Jersey
will never confederate on the plan before the Committee. She would be
swallowed up. He had rather submit to a monarch, to a despot, than to such
a fate. He would not only oppose the plan here but on his return home do
every thing in his power to defeat it there.
Wilson, hoped if the Confederacy should be dissolved, that a
majority
, that a
minority
of the States would unite for
their safety. He entered elaborately into the defence of a proportional
representation, stating for his first position that as all authority was
derived from the people, equal numbers of people ought to have an equal n
of representatives, and different numbers of people different numbers of
representatives. This principle had been improperly violated in the
Confederation, owing to the urgent circumstances of the time. As to the
case of A. & B. stated by M
Patterson, he observed that in
districts as large as the States, the number of people was the best
measure of their comparative wealth. Whether therefore wealth or numbers
were to form the ratio it would be the same. M
P. admitted
persons, not property to be the measure of suffrage. Are not the Citizens
of Pen
equal to those of N. Jersey? does it require 150
of the former to balance 50 of the latter? Representatives of different
districts ought clearly to hold the same proportion to each other, as
their respective Constituents hold to each other. If the small States will
not confederate on this plan, Pen
& he presumed some other
States, would not confederate on any other. We have been told that each
State being sovereign,
[pg 114]
all are equal. So each man is naturally a sovereign over himself, and all
men are therefore naturally equal. Can he retain this equality when he
becomes a member of Civil Government. He can not. As little can a
Sovereign State, when it becomes a member of a federal govern
If N. J. will not part with her sovereignty it is vain to talk of Gov
A new partition of the States is desirable, but evidently & totally
impracticable.
Williamson illustrated the cases by a comparison of the
different States, to Counties of different sizes within the same State;
observing that proportional representation was admitted to be just in the
latter case, and could not therefore be fairly contested in the former.
The Question being about to be put M
Patterson hoped that as
so much depended on it, it might be thought best to postpone the decision
till tomorrow, which was done, nem. con.
The Com
rose & the House adjourned.
Monday, June 11
th
Abraham
Baldwin from Georgia took his seat. In Committee of the Whole.
The clause concerning the rule of suffrage in the Nat
Legislature postponed on Saturday was resumed.
Sherman proposed that the proportion of suffrage in the 1
st
branch should be according to the respective numbers of free inhabitants;
and that in the second branch or Senate, each State should have one vote
and no more. He said as the States would remain possessed of certain
individual rights, each State ought to be able to protect itself:
otherwise a few large States will rule the rest. The House of Lords in
England he observed had certain particular rights under the Constitution,
and hence they
[pg 115]
have an equal vote with the House of Commons that they may be able to
defend their rights.
Rutlidge proposed that the proportion of suffrage in the 1
st
branch should be according to the quotas of contribution. The justice of
this rule he said could not be contested. M
Butler urged the
same idea: adding that money was power; and that the States ought to have
weight in the Gov
in proportion to their wealth.
King & M
Wilson,
[74]
in order to bring the question to a point moved "that the right of
suffrage in the first branch of the national Legislature ought not to be
according [to] the rule established in the articles of Confederation, but
according to some equitable ratio of representation." The clause so far as
it related to suffrage in the first branch was postponed in order to
consider this motion.
[74]
In the
printed Journal Mr. Rutlidge is named as the seconder of the motion.—Madison's
Note.
Dickenson contended for the
actual
contributions of
the States as the rule of their representation & suffrage in the first
branch. By thus connecting the interests of the States with their duty,
the latter would be sure to be performed.
King remarked that it was uncertain what mode might be used
in levying a National revenue; but that it was probable, imposts would be
one source of it. If the
actual
contributions were to be the rule
the non-importing States, as Con
& N. Jersey, w
be in a bad situation indeed. It might so happen that they w
have no representation. This situation of particular States had been
always one powerful argument in favor of the 5 Per C
impost.
The question being ab
to be put Doc
Franklin s
he had thrown his ideas of the matter on a paper w
ch
Mr. Wilson
read to the Committee in the words following—Mr. Chairman
It has given me great pleasure to observe that till
[pg 116]
this point, the
proportion of representation, came before us, our debates were carried
on with great coolness & temper. If any thing of a contrary kind,
has on this occasion appeared. I hope it will not be repeated; for we
are sent here to
consult
, not to
contend
, with each other;
and declarations of a fixed opinion, and of determined resolution, never
to change it, neither enlighten nor convince us. Positiveness and warmth
on one side, naturally beget their like on the other; and tend to create
and augment discord & division in a great concern, wherein harmony
& Union are extremely necessary to give weight to our Councils, and
render them effectual in promoting & securing the common good.
I must own that I was originally of opinion it would be better if every
member of Congress, or our national Council, were to consider himself
rather as a representative of the whole, than as an Agent for the
interests of a particular State; in which case the proportion of members
for each State would be of less consequence, & it would not be very
material whether they voted by States or individually. But as I find
this is not to be expected, I now think the number of Representatives
should bear some proportion to the number of the Represented; and that
the decisions sh
be by the majority of members, not by the
majority of the States. This is objected to from an apprehension that
the greater States would then swallow up the smaller. I do not at
present clearly see what advantage the greater States could propose to
themselves by swallowing up the smaller, and therefore do not apprehend
they would attempt it. I recollect that in the beginning of this
Century, When the Union was proposed of the two Kingdoms, England &
Scotland, the Scotch Patriots were full of fears, that unless they had
an equal number of Representatives in Parliament, they should be ruined
by the superiority of the English. They finally agreed
[pg 117]
however that the different proportions of importance in the Union, of
the two Nations should be attended to, whereby they were to have only
forty members in the House of Commons, and only sixteen in the House of
Lords; A very great inferiority of numbers! And yet to this day I do not
recollect that any thing has been done in the Parliament of Great
Britain to the prejudice of Scotland; and whoever looks over the lists
of Public officers, Civil & Military of that nation will find I
believe that the North Britons enjoy at least their full proportion of
emolument.
But, sir, in the present mode of voting by States, it is equally in the
power of the lesser States to swallow up the greater; and this is
mathematically demonstrable. Suppose for example, that 7 smaller States
had each 3 members in the House, and the 6 larger to have one with
another 6 members; and that upon a question, two members of each smaller
State should be in the affirmative and one in the Negative, they would
make
Affirmatives 14
Negatives 7
And that all the larger States
should be unanimously in the
Negative,
they would make
Negatives 36
In all
43
It is then apparent that the 14 carry the question against the 43, and
the minority overpowers the majority, contrary to the common practice of
Assemblies in all Countries and Ages.
The greater States Sir are naturally as unwilling to have their property
left in the disposition of the smaller, as the smaller are to have
theirs in the disposition of the greater. An honorable gentleman has, to
avoid this difficulty, hinted a proposition of
[pg 118]
equalizing the
States. It appears to me an equitable one, and I should, for my own
part, not be against such a measure, if it might be found practicable.
Formerly, indeed, when almost every province had a different
Constitution, some with greater others with fewer privileges, it was of
importance to the borderers when their boundaries were contested,
whether by running the division lines, they were placed on one side or
the other. At present when such differences are done away, it is less
material. The Interest of a State is made up of the interests of its
individual members. If they are not injured, the State is not injured.
Small States are more easily well & happily governed than large
ones. If therefore in such an equal division, it should be found
necessary to diminish Pennsylvania, I should not be averse to the giving
a part of it to N. Jersey, and another to Delaware. But as there would
probably be considerable difficulties in adjusting such a division; and
however equally made at first, it would be continually varying by the
augmentation of inhabitants in some States, and their fixed proportion
in others; and thence frequent occasion for new divisions, I beg leave
to propose for the consideration of the Committee another mode, which
appears to me to be as equitable, more easily carried into practice, and
more permanent in its nature.
Let the weakest State say what proportion of money or force it is able
and willing to furnish for the general purposes of the Union.
Let all the others oblige themselves to furnish each an equal
proportion.
The whole of these joint supplies to be absolutely in the disposition of
Congress.
The Congress in this case to be composed of an equal number of Delegates
from each State.
And their decisions to be by the Majority of individual members voting.
[pg 119]
If these joint and equal supplies should on particular occasions not be
sufficient, Let Congress make requisitions on the richer and more
powerful States for further aids, to be voluntarily afforded, leaving to
each State the right of considering the necessity and utility of the aid
desired, and of giving more or less as it should be found proper.
This mode is not new. It was formerly practised with success by the
British Government with respect to Ireland and the Colonies. We
sometimes gave even more than they expected, or thought just to accept;
and in the last war carried on while we were united, they gave us back
in 5 years a million Sterling. We should probably have continued such
voluntary contributions, whenever the occasions appeared to require them
for the common good of the Empire. It was not till they chose to force
us, and to deprive us of the merit and pleasure of voluntary
contributions that we refused & resisted. Those contributions
however were to be disposed of at the pleasure of a Government in which
we had no representative. I am therefore persuaded, that they will not
be refused to one in which the Representation shall be equal.
My learned colleague (M
Wilson) has already mentioned that
the present method of voting by States, was submitted to originally by
Congress, under a conviction of its impropriety, inequality, and
injustice. This appears in the words of their Resolution. It is of Sep
6. 1774. The words are
"Resolved that in determining questions in this Cong
each
Colony or province shall have one vote: The Cong
not being
possessed of or at present able to procure materials for ascertaining
the importance of each Colony."
On the question for agreeing to M
King's and M
Wilson's motion it passed in the affirmative.
Mass
ts
ay. C
ay. N. Y. no. N. J. no.
ay.
[pg 120]
Del. no. M
div
ay. N. C. ay. S. C. ay. Geo. ay.
It was then moved by M
Rutlidge, 2
ded
by M
Butler to add to the words "equitable ratio of representation" at the end
of the motion just agreed to, the words "according to the quotas of
contribution." On motion of M
Wilson seconded by M
Pinkney, this was postponed; in order to add, after the words "equitable
ratio of representation" the words following: "in proportion to the whole
number of white & other free Citizens & inhabitants of every age
sex & condition including those bound to servitude for a term of years
and three fifths of all other persons not comprehended in the foregoing
description, except Indians not paying taxes, in each State," this being
the rule in the Act of Congress agreed to by eleven States, for
apportioning quotas of revenue on the States, and requiring a Census only
every 5, 7, or 10 years.
Gerry thought property not the rule of representation. Why
then sh
the blacks, who were property in the South, be in the
rule of representation more than the Cattle & horses of the North.
[75]
[75]
After
Gerry spoke, according to Yates, "Mr. Madison was of opinion at
present, to fix the standard of representation, and let the detail be
the business of a sub-committee."—
Secret Proceedings
, p.
116.
On the question,—Mass: Con: N. Y. Pen: Mary
Virg
N. C. S. C. & Geo: were in the affirmative: N. J. &
Del: in the negative.
Sherman moved that a question be taken whether each State
shall have one vote in the 2
branch. Every thing he said
depended on this. The smaller States would never agree to the plan on any
other principle than an equality of suffrage in this branch. M
Elsworth
[76]
seconded the motion.
[76]
"M
Elsworth is a Judge of the Supreme Court in Connecticut;—he is
Gentleman of a clear, deep, and copius understanding; eloquent, and
connected in public debate; and always attentive to his duty. He is
very happy in a reply, and choice in selecting such parts of his
adversary's arguments as he finds make the strongest impressions,—in
order to take off the force of them, so as to admit the power of his
own. M
Elsworth is about 37 years of age, a Man much
respected for his integrity, and venerated for his abilities."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 326.
[pg 121]
On the question for allowing each State one vote in the 2
branch,
Mass
ts
no. Con
ay. N. Y. ay.
N. J. ay. P
no. Del. ay. M
ay.
no. N. C. no. S. C. no. Geo. no.
Wilson & M
Hamilton moved that the right of
suffrage in the 2
branch ought to be according to the same
rule as in the 1
st
branch. On this question for making the
ratio of representation the same in the 2
as in the 1
st
branch it passed in the affirmative;
Mass
ts
ay. Con
no. N. Y. no.
N. J. no. P
ay. Del. no. M
no.
ay. N. C. ay. S. C. ay. Geo. ay.
Resol: 11, for guarantying Republican Gov
& territory to
each State, being considered—the words "or partition," were, on
motion of M
Madison added, after the words "voluntary
junction;"
Mas. N. Y. P. V
N. C. S. C. G. ay. Con:
N. J. Del: M
no.
Read disliked the idea of guarantying territory. It abetted
the idea of distinct States w
ch
would be a perpetual source of
discord. There can be no cure for this evil but in doing away States
altogether and uniting them all into one great Society.
Alterations having been made in the Resolution, making it read, "that a
Republican Constitution & its existing laws ought to be guaranteed to
each State by the U. States," the whole was agreed to nem. con.
[77]
[77]
Yates
attributes this amendment to Madison. "Mr. Madison moved an amendment,
to add to or alter the resolution as follows: The republican
constitutions and the existing laws of each state, to be guaranteed by
the United States."—
Secret Proceedings
, etc., 116.
[pg 122]
Resolution 13. for amending the national Constitution hereafter without
consent of the Nat
Legislature being considered, Several
members did not see the necessity of the Resolution at all, nor the
propriety of making the consent of the Nat
Legisl.
unnecessary.
Col. Mason urged the necessity of such a provision. The plan now to be
formed will certainly be defective, as the Confederation has been found on
trial to be. Amendments therefore will be necessary, and it will be better
to provide for them, in an easy, regular and Constitutional way than to
trust to chance and violence. It would be improper to require the consent
of the Nat
Legislature, because they may abuse their power,
and refuse their consent on that very account. The opportunity for such an
abuse, may be the fault of the Constitution calling for amendm
Randolph enforced these arguments.
The words, "without requiring the consent of the Nat
Legislature" were postponed. The other provision in the clause passed nem.
con.
Resolution 14. requiring oaths from the members of the State Gov
ts
to observe the Nat
Constitution & laws, being considered,
[78]
[78]
"Mr.
Williamson. This resolve will be unnecessary, as the union will become
the law of the land."—Yates,
Secret Proceedings
, etc.,
117.
Sherman opposed it as unnecessarily intruding into the State
jurisdictions.
Randolph considered it necessary to prevent that competition
between the National Constitution & laws & those of the particular
States, which had already been felt. The officers of the States are
already under oath to the States. To preserve a due impartiality they
ought to be equally bound to the Nat
Gov
. The Nat
authority needs every support we can give it. The Executive &
Judiciary of
[pg 123]
the States, notwithstanding their nominal independence on the State
Legislatures are in fact, so dependent on them, that unless they be
brought under some tie to the Nat
System, they will always
lean too much to the State systems, whenever a contest arises between the
two.
Gerry did not like the clause. He thought there was as much
reason for requiring an oath of fidelity to the States from Nat
officers, as vice versa.
Luther Martin moved to strike out the words requiring such
an oath from the State officers, viz "within the several States,"
observing that if the new oath should be contrary to that already taken by
them it would be improper; if coincident the oaths already taken will be
sufficient.
On the question for striking out as proposed by Mr. L. Martin
Mass
ts
no. Con
ay. N. Y. no.
N. J. ay. P
no. Del. ay. M
ay.
no. N. C. no. S. C. no. Geo. no.
Question on whole Resolution as proposed by M
Randolph;
Mass
ts
ay. Con
no. N. Y. no.
N. J. no. P
ay. Del. no. M
no.
ay. N. C. ay. S. C. ay. Geo. ay.
Com
rose & House Adj
Tuesday June 12
th
in Committee of Whole
The Question taken on the Resolution 15, to wit, referring the new system
to the people of the States for ratification it passed in the affirmative
Mass
ts
ay. Con
no. N. Y. no. N. J. no.
[79]
ay. Del. div
div
. V
ay. N. C. ay.
S. C. ay. Geo. ay.
[79]
Pennsylvania omitted in the printed Journal. The vote is there entered
as of June 11th.—Madison's Note.
[pg 124]
Sherman & M
Elseworth moved to fill the
blank left in the 4
th
Resolution for the periods of electing
the members of the first branch with the words, "every year;" Mr. Sherman
observing that he did it in order to bring on some question.
Rutlidge proposed "every two years."
Jennifer
[80]
prop
, "every
three years," observing that the too great frequency of elections rendered
the people indifferent to them, and made the best men unwilling to engage
in so precarious a service.
[80]
"M
Jenifer is a Gentleman of fortune in Maryland;—he is always in
good humour, and never fails to make his company pleased with him. He
sits silent in the Senate, and seems to be conscious that he is no
politician. From his long continuance in single life, no doubt but he
has made the vow of celibacy. He speaks warmly of the Ladies
notwithstanding. M
Jenifer is about 55 years of Age, and
once served as Aid de Camp to Major Gen
Lee."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 330.
Madison seconded the motion for three years. Instability is
one of the great vices of our republics, to be remedied. Three years will
be necessary, in a Government so extensive, for members to form any
knowledge of the various interests of the States to which they do not
belong, and of which they can know but little from the situation and
affairs of their own. One year will be almost consumed in preparing for
and travelling to & from the seat of national business.
Gerry. The people of New England will never give up the
point of annual elections, they know of the transition made in England
from triennial to septennial elections, and will consider such an
innovation here as the prelude to a like usurpation. He considered annual
elections as the only defence of the people ag
st
tyranny. He
was as much ag
st
a triennial House as ag
st
hereditary Executive.
Madison, observed that if the opinions of the
[pg 125]
people were to be our guide, it w
be difficult to say what
course we ought to take. No member of the Convention could say what the
opinions of his Constituents were at this time; much less could he say
what they would think if possessed of the information & lights
possessed by the members here; & still less what would be their way of
thinking 6 or 12 months hence. We ought to consider what was right &
necessary in itself for the attainment of a proper Governm
. A
plan adjusted to this idea will recommend itself—The respectability
of this convention will give weight to their recommendation of it.
Experience will be constantly urging the adoption of it, and all the most
enlightened & respectable citizens will be its advocates. Should we
fall short of the necessary & proper point, this influential class of
Citizens, will be turned against the plan, and little support in
opposition to them can be gained to it from the unreflecting multitude.
Gerry repeated his opinion that it was necessary to consider
what the people would approve. This had been the policy of all
Legislators. If the reasoning of Mr. Madison were just, and we supposed a
limited Monarchy the best form in itself, we ought to recommend it, tho'
the genius of the people was decidedly adverse to it, and having no
hereditary distinctions among us, we were destitute of the essential
materials for such an innovation.
On the question for the triennial election of the 1
st
branch
Mass. no. (M
King ay.) M
Ghorum wavering.
Con
no. N. Y. ay. N. J. ay. P
ay.
Del. ay. M
ay. V
ay. N. C. no.
S. C. no. Geo. ay.
The words requiring members of y
st
branch to be
of the age of —— years were struck out Maryland alone no. The
words "
liberal compensation for members
," being consid
Madison moves to insert the words, "
& fixt
." He
observed that it
[pg 126]
would be improper to leave the members of the Nat
legislature
to be provided for by the State Legisl
, because it would
create an improper dependence; and to leave them to regulate their own
wages, was an indecent thing, and might in time prove a dangerous one. He
thought wheat or some other article of which the average price throughout
a reasonable period preceding might be settled in some convenient mode,
would form a proper standard.
Col. Mason seconded the motion; adding that it would be improper for other
reasons to leave the wages to be regulated by the States. 1. the different
States would make different provision for their representatives, and an
inequality would be felt among them, whereas he thought they ought to be
in all respects equal. 2. the parsimony of the States might reduce the
provision so low that as had already happened in choosing delegates to
Congress, the question would be not who were most fit to be chosen, but
who were most willing to serve.
On the question for inserting the words, "and fixt"
Mass
ts
no. Con
no. N. Y. ay.
N. J. ay. P
ay. Del. ay. M
ay.
ay. N. C. ay. S. C. no. Geo. ay.
Doc
Franklyn said he approved of the amendment just made for
rendering the salaries as fixed as possible; but disliked the word "
liberal
."
He would prefer the word moderate if it was necessary to substitute any
other. He remarked the tendency of abuses in every case, to grow of
themselves when once begun, and related very pleasantly the progression in
ecclesiastical benefices, from the first departure from the gratuitous
provision for the Apostles, to the establishment of the papal system. The
word "liberal" was struck out nem con.
On the motion of M
Pierce, that the wages should be paid out
of the National Treasury, Mass
ts
ay. C
[pg 127]
no. N. Y. no. N. J. ay. P
ay. Del. ay.
ay. V
ay. N. C. ay. S. C. no.
G. ay.
Question on the clause relating to term of service & compensation of 1
st
branch,
Mass
ts
ay. C
no. N. Y. no. N. J. ay.
ay. Del. ay. M
ay. V
ay.
N. C. ay. S. C. no. Geo. ay.
On a question for striking out the "
ineligibility
of members of the
Nat
Legis: to
State offices
,"
Mass
ts
div
. Con
ay. N. Y. ay.
N. J. no. P
no. Del. no. M
div
no. N. C. ay. S. C. ay. Geo. no.
On the question for agreeing to the clause as amended,
Mass
ts
ay. Con
no. N. Y. ay.
N. J. ay. P
ay. Del. ay. M
ay.
ay. N. C. ay. S. C. ay. Geo. ay.
On a question for making members of the Nat
Legislature
ineligible
to any office under the Nat
Gov
for the term of 3
years after ceasing to be members,
Mass
ts
no. Con
no. N. Y. no.
N. J. no. P
no. Del. no. M
ay.
no. N. C. no. S. C. no. Geo. no.
On the question for such ineligibility for one year,
Mass
ts
ay. C
ay. N. Y. no. N. J. ay.
ay. Del. ay. M
div
ay. N. C. ay. S. C. ay. Geo. no.
On question moved by Mr. Pinckney, for striking out "incapable of
re-election into 1
st
branch of the Nat
Legisl. for
—— years, and subject to recall" ag
to nem. con.
On question for striking out from the Resol: 5 the words requiring members
of the Senatorial branch to be of the age of —— years at least
Mass
ts
no. Con
ay. N. Y. no.
N. J. ay. P
ay. Del. no. M
no.
no. N. C. div
. S. C. no.
Geo. div
On the question for filling the blank with 30 years as the qualification;
it was agreed to,
[pg 128]
Mass
ts
ay. C
no. N. Y. ay. N. J. no.
ay. Del. no. M
ay. V
ay.
N. C. ay. S. C. ay. Geo. no.
Spaight moved to fill the blank for the duration of the
appointm
ts
to the 2
branch of the National
Legislature with the words "7 years."
Sherman, thought 7 years too long. He grounded his
opposition he said on the principle that if they did their duty well, they
would be reelected. And if they acted amiss, an earlier opportunity should
be allowed for getting rid of them. He preferred 5 years which w
be between the terms of the 1
st
branch & of the executive.
Pierce proposed 3 years. 7 years would raise an alarm. Great
mischiefs had arisen in England from their septennial Act which was
reprobated by most of their patriotic Statesmen.
Randolph was for the term of 7 years. The democratic
licentiousness of the State Legislatures proved the necessity of a firm
Senate. The object of this 2
branch is to controul the
democratic branch of the Nat
Legislature. If it be not a firm
body, the other branch being more numerous, and coming immediately from
the people, will overwhelm it. The Senate of Maryland constituted on like
principles had been scarcely able to stem the popular torrent. No mischief
can be apprehended, as the concurrence of the other branch, and in some
measure, of the Executive, will in all cases be necessary. A firmness
& independence may be the more necessary also in this branch, as it
ought to guard the Constitution ag
st
encroachments of the
Executive who will be apt to form combinations with the demagogues of the
popular branch.
Madison, considered 7 years as a term by no means too long.
What we wished was to give to the Gov
that stability which was
every where called for, and which the Enemies of the Republican form
alledged to be inconsistent with its nature. He was
[pg 129]
not afraid of giving
too much stability by the term of Seven years. His fear was that the
popular branch would still be too great an overmatch for it. It was to be
much lamented that we had so little direct experience to guide us. The
Constitution of Maryland was the only one that bore any analogy to this
part of the plan. In no instance had the Senate of Mary
created just suspicions of danger from it. In some instances perhaps it
may have erred by yielding to the H. of Delegates. In every instance of
their opposition to the measures of the H. of D. they had had with them
the suffrages of the most enlightened and impartial people of the other
States as well as of their own. In the States where the Senates, were
chosen in the same manner as the other branches, of the Legislature, and
held their seats for 4 years, the institution was found to be no check
whatever ag
st
the instabilities of the other branches. He
conceived it to be of great importance that a stable & firm Gov
organized in the republican form should be held out to the people. If this
be not done, and the people be left to judge of this species of Gov
by y
operations of the defective systems under which they now
live, it is much to be feared the time is not distant when, in universal
disgust, they will renounce the blessing which they have purchased at so
dear a rate, and be ready for any change that may be proposed to them.
On the question for "seven years" as the term for the 2
branch
Mass
ts
divided. (M
King, M
Ghorum ay, M
Gerry, M
Strong, no) Con
no. N. Y. div
N. J. ay. P
ay. Del. ay. M
ay.
ay. N. C. ay. S. C. ay. Geo. ay.
Butler and M
Rutlidge proposed that the members
of the 2
branch should be entitled to no salary or
compensation for their services. On the question,
[81]
[pg 130]
Mass
ts
div
. Con
ay. N. Y. no.
N. J. no. P. no. Del. ay. M
no. V
no.
N. C. no. S. C. ay. Geo. no.
[81]
(It is
probable y
votes here turned chiefly on the idea that if
the salaries were not here provided for, the members would be paid by
their respective States) This note for the bottom margin.—Madison's
Note.
It was then moved & agreed that the clauses respecting the stipends
& ineligibility of the 2
branch be the same as, of the 1
st
branch:—Con: disagreeing to the ineligibility.
It was moved & 2
ded
to alter the Resol: 9. so as to read
"that the jurisdiction of the supreme tribunal shall be to hear &
determine in the dernier resort, all piracies, felonies, &c."
It was moved & 2
ded
to strike out "all piracies &
felonies on the high seas," which was agreed to.
It was moved & agreed to strike out "all captures from an enemy."
It was moved & agreed to strike out "other States" and insert "two
distinct States of the Union."
It was moved & agreed to postpone the consideration of the Resolution
9, relating to the Judiciary:
The Com
then rose & the House Adjourned.
Wednesday June 13.
[82]
in Committee of the whole
[82]
Edward
Carrington wrote to Madison from New York, June 13, 1787:
"The public mind is now on the point of a favourable turn to the
objects of your meeting, and, being fairly met with the result,
will, I am persuaded, eventually embrace it—being calculated
for the permanent fitness, and not the momentary habits of the
country, it may at first be viewed with hesitation, but derived and
patronized as it will be, its influence must extend into an adoption
as the present fabric gives way—the work once well done will
be done forever, but patched up in accommodation to the whim of the
day, it will soon require the hand of the cobbler again, and in
every unfortunate experiment the materials are rendered the less fit
for that monument of civil liberty which we wish to erect.—Constitute
a federal Government, invigorate & check it well—give it
then independent powers over the Trade the Revenues, and force of
the Union, and all things that involve any relationship to foreign
powers—give it also the revisal of all State acts—unless
it possesses a compleat controul over the State Governments, the
constant effort will be to resume the delegated powers,—nor do
I see what inducement the federal sovereignty can have to negative
an innocent act of a State—Constitute it in such shape that,
its first principles being preserved, it will be a good republic—I
wish to see that system have a fair experiment—but let the
liability to encroachment be rather from the federal, than the
State, governments—in the first case we shall insensibly glide
into a monarchy: in the latter nothing but anarchy can be the
consequence.
"Some Gentlemen think of a total surrender of the State Sovereignty—I
see not the necessity of that measure for giving us national
stability in consequence—the negative of the federal
sovereignty will effectually prevent the existence of any licentious
or inconsiderate act—and I believe that even under a new
monarchy it would be found necessary thus to continue the local
administration—general Laws would operate many particular
[undecipherable] and a general legislature would be found
incompetent to the formation of local ones—the interest of the
United States may be well combined for the common good—but the
affairs of so extensive a country are not to be thrown into one mass—an
attempt to confederate upon terms materially opposed to the
particular Interests would in all probability occasion a
dismemberment, and in that event, within a long time yet to come,
the prospects of commerce will be at an end as to any degree of
national importance, let her fate be what it may as to freedom or
vassalage."—
Mad. MSS.
Resol: 9 being resumed
The latter parts of the clause relating to the jurisdiction of the Nat
tribunals, was struck out nem. con in order to leave full room for their
organization.
Randolph & M
Madison, then moved the
following resolution respecting a National Judiciary,
[pg 131]
viz "that the
jurisdiction of the National Judiciary shall extend to cases, which
respect the collection of the national revenue, impeachments of any
national officers, and questions which involve the national peace and
harmony" which was agreed to.
Pinkney & M
Sherman moved to insert after
the words "one supreme tribunal" the words "the Judges of which to be
appointed by the National Legislature."
Madison, objected to an app
by the whole
Legislature. Many of them were incompetent Judges of the requisite
qualifications. They were too much influenced by their partialities. The
candidate who was present, who had displayed a talent for business in the
legislative field, who had perhaps assisted ignorant members in business
of their own,
[pg 132]
or of their Constituents, or used other winning means, would without any
of the essential qualifications for an expositor of the laws prevail over
a competitor not having these recommendations, but possessed of every
necessary accomplishment. He proposed that the appointment should be made
by the Senate, which as a less numerous & more select body, would be
more competent judges, and which was sufficiently numerous to justify such
a confidence in them.
Sherman & M
Pinkney withdrew their motion,
and the app
by the Senate was ag
to nem. con.
Gerry moved to restrain the Senatorial branch from
originating money bills. The other branch was more immediately the
representatives of the people, and it was a maxim that the people ought to
hold the Purse-strings. If the Senate should be allowed to originate such
bills, they w
repeat the experiment, till chance should
furnish a sett of representatives in the other branch who will fall into
their snares.
Butler saw no reason for such a discrimination. We were
always following the British Constitution when the reason of it did not
apply. There was no analogy between the H. of Lords and the body proposed
to be established. If the Senate should be degraded by any such
discriminations, the best men would be apt to decline serving in it in
favor of the other branch. And it will lead the
[pg 133]
latter into the
practice of tacking other clauses to money bills.
Madison observed that the Comentators on the Brit: Const:
had not yet agreed on the reason of the restriction on the H. of L. in
money bills. Certain it was there could be no similar reason in the case
before us. The Senate would be the representatives of the people as well
as the 1
st
branch. If they s
have any dangerous
influence over it, they would easily prevail on some member of the latter
to originate the bill they wished to be passed. As the Senate would be
generally a more capable sett of men, it w
be wrong to disable
them from any preparation of the business, especially of that which was
most important, and in our republics, worse prepared than any other. The
Gentleman in pursuance of his principle ought to carry the restraint to
the
amendment
, as well as the originating of money bills, since, an
addition of a given sum w
be equivalent to a distinct
proposition of it.
King differed from M
Gerry, and concurred in the
objections to the proposition.
Read favored the proposition, but would not extend the
restraint to the case of amendments.
Pinkney thinks the question premature. If the Senate sh
be formed on the
same
proportional representation as it stands at
present, they s
have equal power, otherwise if a different
principle s
be introduced.
Sherman. As both branches must concur, there can be no
danger whichever way the Senate be formed. We establish two branches in
order to get more wisdom, which is particularly needed in the finance
business—The Senate bear their share of the taxes, and are also the
representatives of the people. What a man does by another, he does by
himself is a maxim. In Con
both branches can originate in all
cases, and it has been found safe &
[pg 134]
convenient. Whatever
might have been the reason of the rule as to The H. of Lords, it is clear
that no good arises from it now even there.
Gen
Pinkney. This distinction prevails in S. C. and has been a
source of pernicious disputes between y
2 branches. The
Constitution is now evaded, by informal schedules of amendments handed
from y
Senate to the other House.
Williamson wishes for a question chiefly to prevent
re-discussion. The restriction will have one advantage, it will oblige
some member in the lower branch to move, & people can then mark him.
On the question for excepting money bills, as prop
by M
Gerry, Mass. no. Con
no. N. Y. ay. N. J. no.
Del. ay. M
no. V
ay. N. C. no.
S. C. no. Geo. no.
[83]
[83]
According
to the Journal (121) Pennsylvania was among the noes.
Committee rose & M
Ghorum made report, which was postponed
till tomorrow, to give an opportunity for other plans to be proposed. The
report was in the words following:
Report of the Committee of Whole on M
Randolph's
propositions.
1. Res
that it is the opinion of this Committee that a
National Governm
ought to be established, consisting of a
supreme Legislative, Executive & Judiciary.
2. Resol
that the National Legislature ought to consist of two
branches.
3. Res
that the members of the first branch of the National
Legislature ought to be elected by the people of the several States for
the term of three years, to receive fixed Stipends by which they may be
compensated for the devotion of their time to public service, to be paid
out of the National Treasury: to be ineligible to any office established
by a particular State, or under the authority of the U.
[pg 135]
States, (except those peculiarly belonging to the functions of the first
branch), during the term of service, and under the national Government for
the Space of one year after its expiration.
4. Res
that the members of the second branch of the Nat
Legislature ought to be chosen by the individual Legislatures, to be of
the age of 30 years at least, to hold their offices for a term sufficient
to ensure their independency, namely, seven years, to receive fixed
stipends by which they may be compensated for the devotion of their time
to public service to be paid out of the National Treasury; to be
ineligible to any office established by a particular State, or under the
authority of the U. States, (except those peculiarly belonging to the
functions of the second branch) during the term of service, and under the
Nat
Gov
for the space of one year after its
expiration.
5. Res
that each branch ought to possess the right of
originating Acts.
6. Res
that the Nat
Legislature ought to be
empowered to enjoy the Legislative rights vested in Cong
by
the Confederation, and moreover to legislate in all cases to which the
separate States are incompetent; or in which the harmony of the U. S. may
be interrupted by the exercise of individual legislation; to negative all
laws passed by the several States contravening in the opinion of the
National Legislature the articles of Union, or any treaties subsisting
under the authority of the Union.
7. Res
that the rights of suffrage in the 1
st
branch of the National Legislature, ought not to be according to the rule
established in the articles of confederation but according to some
equitable ratio of representation, namely, in proportion to the whole
number of white & other free citizens & inhabitants, of every age
sex and condition, including those
[pg 136]
bound to servitude for a term of
years, & three fifths of all other persons, not comprehended in the
foregoing description, except Indians not paying taxes in each State.
8. Resolved that the right of suffrage in the 2
branch of the
National Legislature ought to be according to the rule established for the
first.
9. Resolved that a National Executive be instituted to consist of a single
person, to be chosen by the Nat
Legislature for the term of
seven years, with power to carry into execution the national laws, to
appoint to offices in cases not otherwise provided for—to be
ineligible a second time, & to be removeable on impeachment and
conviction of malpractices or neglect of duty—to receive a fixed
stipend by which he may be compensated for the devotion of his time to
public service to be paid out of the national Treasury.
10. Resol
that the Nat
Executive shall have a
right to negative any Legislative Act, which shall not be afterwards
passed unless by two thirds of each branch of the National Legislature.
11. Resol
that a Nat
Judiciary be established, to
consist of one supreme tribunal, the Judges of which to be appointed by
the 2
branch of the Nat
Legislature, to hold their
offices during good behaviour, & to receive punctually at stated times
a fixed compensation for their services, in which no increase or
diminution shall be made, so as to affect the persons actually in office
at the time of such increase or diminution.
12. Resol
that the Nat
Legislature be empowered to
appoint inferior Tribunals.
13. Res
that the jurisdiction of the Nat
Judiciary
shall extend to all cases which respect the collection of the Nat
revenue, impeachments of any Nat
Officers, and questions which
involve the national peace & harmony.
[pg 137]
14. Res
that provision ought to be made for the admission of
States lawfully arising within the limits of the U. States, whether from a
voluntary junction of Government & territory or otherwise, with the
consent of a number of voices in the Nat
Legislature less than
the whole.
15. Res
that provision ought to be made for the continuance of
Congress and their authorities and privileges untill a given day after the
reform of the articles of Union shall be adopted and for the completion of
all their engagements.
16. Res
that a Republican Constitution & its existing laws
ought to be guaranteed to each State by the U. States.
17. Res
that provision ought to be made for the amendment of
the Articles of Union whensoever it shall seem necessary.
18. Res
that the Legislative, Executive & Judiciary powers
within the several States ought to be bound by oath to support the
articles of Union.
19. Res
that the amendments which shall be offered to the
confederation by the Convention ought at a proper time or times after the
approbation of Cong
to be submitted to an Assembly or
Assemblies recommended by the several Legislatures to be expressly chosen
by the people to consider and decide thereon.
Thursday June 14. In Convention.
Patterson, observed to the Convention that it was the wish
of several deputations, particularly that of N. Jersey, that further
time might be allowed them to contemplate the plan reported from the
Committee of the Whole, and to digest one purely federal, and
contradistinguished from the reported plan. He said they hoped to have
such an one ready
[pg 138]
by tomorrow to be laid before the Convention: And the Convention adjourned
that leisure might be given for the purpose.
Friday June 15
th
1787
Patterson, laid before the Convention the plan which he said
several of the deputations wished to be substituted in place of that
proposed by M
Randolph. After some little discussion of the
most proper mode of giving it a fair deliberation it was agreed that it
should be referred to a Committee of the Whole, and that in order to place
the two plans in due comparison, the other should be recommitted. At the
earnest request of M
Lansing
[84]
& some other gentlemen, it was also agreed that the Convention should
not go into Com̃ittee of the whole on the subject till tomorrow, by
which delay the friends of the plan proposed by M
Patterson w
be better prepared to explain & support it, and all would have an
opportu
of taking copies.
[85]
[84]
"Mr.
Lansing is a practising Attorney at Albany, and Mayor of that
Corporation. He has a hisitation in his speech, that will prevent his
being an Orator of any eminence;—his legal knowledge I am told
is not extensive, nor his education a good one. He is however a Man of
good sense, plain in his manners, and sincere in his friendships. He
is about 32 years of age."—Pierce's Notes,
Am. Hist. Rev.
iii., 327.
[85]
(This plan
had been concerted among the deputations or members thereof, from Con
N. Y. N. J. Del. and perhaps M
Martin from Mary
who made with them a common cause though on different principles. Con
& N. Y. were ag
st
a departure from the principle
of the Confederation, wishing rather to add a few new powers to Cong
than to substitute, a National Gov
. The States of N. J.
& Del. were opposed to a National Gov
because its
patrons considered a proportional representation of the States as the
basis of it. The eagerness displayed by the members opposed to a Nat
Gov
from these different motives began now to produce
serious anxiety for the result of the Convention. M
Dickenson said to M
Madison You see the consequence of
pushing things too far. Some of the members from the small States wish
for two branches in the General Legislature, and are friends to a good
National Government; but we would sooner submit to foreign power, than
submit to be deprived of an equality of suffrage in both branches of
the legislature, and thereby be thrown under the domination of the
large States.)—Madison Note.
"Mr. Madison moved for the report of the committee, and the question
may then come on whether the convention will postpone it in order to
take into consideration the system now offered.
"Mr. Lansing is of opinion that the two systems are fairly contrasted.
The one now offered is on the basis of amending the federal
government, and the other to be reported as a national government, on
propositions which exclude the propriety of amendment. Considering
therefore its importance, and that justice may be done to its weighty
consideration, he is for postponing it a day.
"Col. Hamilton cannot say he is in sentiment with either plan—supposes
both might again be considered as federal plans, and by this means
they will be fairly in committee, and be contrasted so as to make a
comparative estimate of the two."—Yates,
Secret Proceedings
etc., 121, 122.
[pg 139]
The propositions from N. Jersey moved by M
Patterson were
in the words following.
1. Res
that the articles of Confederation ought to be so
revised, corrected, & enlarged, as to render the federal
Constitution adequate to the exigencies of Government, & the
preservation of the Union.
2. Res
that in addition to the powers vested in the U.
States in Congress, by the present existing articles of Confederation,
they be authorized to pass acts for raising a revenue, by levying a duty
or duties on all goods or merchandizes of foreign growth or manufacture,
imported into any part of the U. States, by Stamps on paper, vellum or
parchment, and by a postage on all letters or packages passing through
the general post-office, to be applied to such federal purposes as they
shall deem proper & expedient; to make rules & regulations for
the collection thereof; and the same from time to time, to alter &
amend in such manner as they shall think proper, to pass Acts for the
regulation of trade & commerce as well with foreign Nations as with
each other: provided that all punishments, fines, forfeitures &
penalties to be incurred for contravening
[pg 140]
such acts rules and
regulations shall be adjudged by the Common law Judiciaries of the State
in which any Offence contrary to the true intent & meaning of such
Acts rules & regulations shall have been committed or perpetrated,
with liberty of commencing in the first instance all suits &
prosecutions for that purpose in the Superior Common law Judiciary in
such State, subject nevertheless, for the correction of all errors, both
in law & fact in rendering Judgment, to an appeal to the Judiciary
of the U. States.
3. Res
that whenever requisitions shall be necessary,
instead of the rule for making requisitions mentioned in the articles of
Confederation, the United States in Cong
be authorized to
make such requisitions in proportion to the whole number of white &
other free citizens & inhabitants of every age Sex and condition
including those bound to servitude for a term of years & three
fifths of all other persons not comprehended in the foregoing
description, except Indians not paying taxes; that if such requisitions
be not complied with, in the time specified therein, to direct the
collection thereof in the non complying States & for that purpose to
devise and pass acts directing & authorizing the same; provided that
none of the powers hereby vested in the U. States in Cong
shall be exercised without the consent of at least ——
States, and in that proportion if the number of Confederated States
should hereafter be increased or diminished.
4. Res
that the U. States in Cong
be authorized
to elect a federal Executive to consist of —— persons, to
continue in office for the term of —— years, to receive
punctually at stated times a fixed compensation for their services, in
which no increase nor diminution shall be made so as to affect the
persons composing the Executive at the time of such increase or
diminution, to be paid out of the
[pg 141]
federal treasury; to be incapable
of holding any other office or appointment during their time of service
and for —— years thereafter: to be ineligible a second time,
& removeable by Cong
on application by a majority of the
Executives of the several States; that the Executives besides their
general authority to execute the federal acts ought to appoint all
federal officers not otherwise provided for, & to direct all
military operations; provided that none of the persons composing the
federal Executive shall on any occasion take command of any troops, so
as personally to conduct any enterprise as General or in any other
capacity.
5. Res
that a federal Judiciary be established to consist of
a supreme Tribunal the Judges of which to be appointed by the Executive,
& to hold their offices during good behaviour, to receive punctually
at stated times a fixed compensation for their services in which no
increase nor diminution shall be made, so as to affect the persons
actually in office at the time of such increase or diminution: that the
Judiciary so established shall have authority to hear & determine in
the first instance on all impeachments of federal Officers, & by way
of appeal in the dernier resort in all cases touching the rights of
Ambassadors, in all cases of captures from an enemy, in all cases of
piracies & felonies on the high Seas, in all cases in which
foreigners may be interested, in the construction of any treaty or
treaties, or which may arise on any of the Acts for the regulation of
trade, or the collection of the federal Revenue: that none of the
Judiciary shall during the time they remain in office be capable of
receiving or holding any other office or appointment during their term
of service, or for —— thereafter.
6. Res
that all Acts of the U. States in Cong
made by virtue & in pursuance of the powers hereby & by the
Articles of Confederation vested in them,
[pg 142]
and all Treaties
made & ratified under the authority of the U. States shall be the
supreme law of the respective States so far forth as those Acts or
Treaties shall relate to the said States or their Citizens, and that the
Judiciary of the several States shall be bound thereby in their
decisions any thing in the respective laws of the Individual States to
the Contrary notwithstanding: and that if any State, or any body of men
in any State shall oppose or prevent y
carrying into
execution such acts or treaties, the federal Executive shall be
authorized to call forth y
power of the Confederated States,
or so much thereof as may be necessary to enforce and compel an
Obedience to such Acts, or an observance of such Treaties.
7. Res
that provision be made for the admission of new
States into the Union.
8. Res
that the rule for naturalization ought to be same in
every State.
9. Res
that a Citizen of one State committing an offence in
another State of the Union, shall be deemed guilty of the same offence
as if it had been committed by a Citizen of the State in which the
offence was committed.
[86]
[86]
This copy
of M
Patterson's propositions varies in a few clauses
from that in the printed Journal furnished from the papers of M
Brearley a colleague of M
Patterson. A confidence is felt,
notwithstanding, in its accuracy. That the copy in the Journal is not
entirely correct is shewn by the ensuing speech of M
Wilson (June 16) in which he refers to the mode of removing the
Executive by impeachment & conviction as a feature in the Virg
plan forming one of its contrasts to that of M
Patterson,
which proposed a removal on the application of a majority of the
Executives of the States. In the copy printed in the Journal, the two
modes are combined in the same clause; whether through inadvertence,
or as a contemplated amendment, does not appear.—Madison's
Note.
The Journal contains: "6. Resolved, that the legislative, executive,
and judiciary powers within the several states, ought to be bound, by
oath, to support the articles of union," and "9. Resolved, that
provision ought to be made for hearing and deciding upon all disputes
arising between the United States and an individual state, respecting
territory."—
Journal of the Federal Convention
, 126.
Adjourned.
[pg 143]
Saturday June 16. in Committee of the Whole
on
Resolutions propos
by M
P. & M
R.
Lansing called for the reading of the 1
st
resolution of each plan, which he considered as involving principles
directly in contrast; that of M
Patterson says he sustains the
sovereignty of the respective States, that of M
Randolph
destroys it: the latter requires a negative on all the laws of the
particular States; the former, only certain general powers for the general
good. The plan of M
R. in short absorbs all power except what
may be exercised in the little local matters of the States which are not
objects worthy of the supreme cognizance. He grounded his preference of M
P's plan, chiefly on two objections ag
st
that of M
R. 1. want of power in the Convention to discuss & propose it. 2. the
improbability of its being adopted, 1. He was decidedly of opinion that
the power of the Convention was restrained to amendments of a federal
nature, and having for their basis the Confederacy in being. The Act of
Congress The tenor of the Acts of the States, the Com̃issions
produced by the several deputations all proved this. And this limitation
of the power to an amendment of the Confederacy, marked the opinion of the
States, that it was unnecessary & improper to go farther. He was sure
that this was the case with his State. N. York would never have
concurred in sending deputies to the Convention, if she had supposed the
deliberations were to turn on a consolidation of the States, and a
National Government.
2. was it probable that the States would adopt & ratify a scheme,
which they had never authorized us to propose? and which so far exceeded
what
[pg 144]
they regarded as sufficient? We see by their several Acts particularly in
relation to the plan of revenue proposed by Cong. in 1783, not authorized
by the Articles of Confederation, what were the ideas they then
entertained. Can so great a change be supposed to have already taken
place. To rely on any change which is hereafter to take place in the
sentiments of the people would be trusting to too great an uncertainty. We
know only what their present sentiments are. And it is in vain to propose
what will not accord with these. The States will never feel a sufficient
confidence in a general Government to give it a negative on their laws.
The Scheme is itself totally novel. There is no parallel to it to be
found. The Authority of Congress is familiar to the people, and an
augmentation of the powers of Congress will be readily approved by them.
Patterson, said as he had on a former occasion given his
sentiments on the plan proposed by M
R. he would now avoiding
repetition as much as possible give his reasons in favor of that proposed
by himself. He preferred it because it accorded 1. with the powers of the
Convention, 2 with the sentiments of the people. If the confederacy was
radically wrong, let us return to our States, and obtain larger powers,
not assume them ourselves. I came here not to speak my own sentiments, but
the sentiments of those who sent me. Our object is not such a Governm
as may be best in itself, but such a one as our Constituents have
authorized us to prepare, and as they will approve. If we argue the matter
on the supposition that no Confederacy at present exists, it can not be
denied that all the States stand on the footing of equal sovereignty. All
therefore must concur before any can be bound. If a proportional
representation be right, why do we not vote so here? If we argue on the
fact that a federal compact actually exists, and consult the articles of
[pg 145]
it we still find an equal Sovereignty to be the basis of it. He reads the
th
art: of Confederation giving each State a vote—&
the 13
th
declaring that no alteration shall be made without
unanimous consent. This is the nature of all treaties. What is unanimously
done, must be unanimously undone. It was observed (by M
Wilson) that the larger State gave up the point, not because it was right,
but because the circumstances of the moment urged the concession. Be it
so. Are they for that reason at liberty to take it back. Can the donor
resume his gift without the consent of the donee. This doctrine may be
convenient, but it is a doctrine that will sacrifice the lesser States.
The larger States acceded readily to the confederacy. It was the small
ones that came in reluctantly and slowly. N. Jersey & Maryland were
the two last, the former objecting to the want of power in Congress over
trade: both of them to the want of power to appropriate the vacant
territory to the benefit of the whole.—If the sovereignty of the
States is to be maintained, the Representatives must be drawn immediately
from the States, not from the people: and we have no power to vary the
idea of equal sovereignty. The only expedient that will cure the
difficulty, is that of throwing the States into Hotchpot. To say that this
is impracticable, will not make it so. Let it be tried, and we shall see
whether the Citizens of Mass
ts
Pen
& V
accede to it. It will be objected that Coercion will be impracticable. But
will it be more so in one plan than the other? Its efficacy will depend on
the quantum of power collected, not on its being drawn from the States, or
from the individuals; and according to his plan it may be exerted on
individuals as well as according that of M
R. A distinct
executive & Judiciary also were equally provided by his plan. It is
urged that two branches in the Legislature are necessary.
[pg 146]
Why? for the purpose of a check. But the reason of the precaution is not
applicable to this case. Within a particular State, where party heats
prevail, such a check may be necessary. In such a body as Congress it is
less necessary, and besides, the delegations of the different States are
checks on each other. Do the people at large complain of Cong
No, what they wish is that Cong
may have more power. If the
power now proposed be not eno', the people hereafter will make
additions to it. With proper powers Cong
will act with more
energy & wisdom than the proposed Nat
Legislature; being
fewer in number, and more secreted & refined by the mode of election.
The plan of M
R. will also be enormously expensive. Allowing
Georgia & Del. two representatives each in the popular branch the
aggregate number of that branch will be 180. Add to it half as many for
the other branch and you have 270, coming once at least a year from the
most distant as well as the most central parts of the republic. In the
present deranged State of our finances can so expensive a System be
seriously thought of? By enlarging the powers of Cong
the
greatest part of this expence will be saved, and all purposes will be
answered. At least a trial ought to be made.
Wilson entered into a contrast of the principal points of
the two plans so far he said as there had been time to examine the one
last proposed. These points were 1. in the Virg
plan there are
2 & in some degree 3 branches in the Legislature: in the plan from N. J.
there is to be a
single
legislature only—2. Representation of
the people at large is the basis of one: the State Legislatures, the
pillars of the other—3. proportional representation prevails in one;—equality
of suffrage in the other—4. A single Executive Magistrate is at the
head of the one:—a plurality is held out in the other.—5. in
the one the majority of the people of the U. S. must prevail:—in
[pg 147]
the other a minority may prevail. 6. the Nat
Legislature is to
make laws in all cases to which the separate States are incompetent &:—in
place of this Cong
are to have additional power in a few cases
only—7. A negative on the laws of the States:—in place of this
coertion to be substituted—8. The Executive to be removable on
impeachment & conviction;—in one plan: in the other to be
removable at the instance of a majority of the Executives of the States—9.
Revision of the laws provided for in one:—no such check in the other—10.
inferior national tribunals in one:—none such in the other. 11. In
one y
jurisdiction of Nat
tribunals to extend
&c—; an appellate jurisdiction only allowed in the other. 12.
Here the jurisdiction is to extend to all cases affecting the Nation
peace & harmony;
there
a few cases only are marked out. 13.
finally y
ratification is in this to be by the people
themselves:—in that by the legislative authorities according to the
13 art: of the Confederation.
With regard to the
power of the Convention
, he conceived himself
authorized to
conclude nothing
, but to be at liberty to
propose
any thing
. In this particular he felt himself perfectly indifferent to
the two plans.
With
regard to the sentiments of the people
, he conceived it
difficult to know precisely what they are. Those of the particular circle
in which one moved, were commonly mistaken for the general voice. He could
not persuade himself that the State Gov
ts
& Sovereignties
were so much the idols of the people, nor a Nat
Gov
so obnoxious to them, as some supposed. Why s
a Nat
Gov
be unpopular? Has it less dignity? will each Citizen enjoy
under it less liberty or protection? Will a Citizen of
Deleware
be
degraded by becoming a Citizen of the
United States
? Where do the
people look at present for relief from the evils of which they complain?
Is it
[pg 148]
from an internal reform of their Gov
ts
? no, Sir. It is from the
Nat
Councils that relief is expected. For these reasons he did
not fear, that the people would not follow us into a National Gov
and it will be a further recommendation of M
R'
plan that it is to be submitted to
them
, and not to the
Legislatures
for ratification.
Proceeding now to the 1
st
point on which he had contrasted the
two plans, he observed that anxious as he was for some augmentation of the
federal powers, it would be with extreme reluctance indeed that he could
ever consent to give powers to Cong
he had two reasons either
of w
ch
was sufficient, 1. Cong
as a Legislative
body does not stand on the people. 2. it is a
single
body. 1. He
would not repeat the remarks he had formerly made on the principles of
Representation, he would only say that an inequality in it, has ever been
a poison contaminating every branch of Gov
. In G. Britain
where this poison has had a full operation, the security of private rights
is owing entirely to the purity of her tribunals of Justice, the Judges of
which are neither appointed nor paid, by a venal Parliament. The political
liberty of that Nation, owing to the inequality of representation is at
the mercy of its rulers. He means not to insinuate that there is any
parallel between the situation of that Country & ours at present. But
it is a lesson we ought not to disregard, that the smallest bodies in G.
B. are notoriously the most corrupt. Every other source of influence must
also be stronger in small than large bodies of men. When Lord Chesterfield
had told us that one of the Dutch provinces had been seduced into the
views of France, he need not have added, that it was not Holland, but one
of the
smallest
of them. There are facts among ourselves which are
known to all. Passing over others, he will only remark that the
Impost
so anxiously wished for by the public was defeated not
[pg 149]
by
any of the
larger
States in the Union. 2.
Congress is a single
Legislature.
Despotism comes on Mankind in different Shapes, sometimes
in an Executive, sometimes in a Military, one. Is there no danger of a
Legislative despotism? Theory & practice both proclaim it. If the
Legislative authority be not restrained, there can be neither liberty nor
stability; and it can only be restrained by dividing it within itself,
into distinct and independent branches. In a single House there is no
check, but the inadequate one, of the virtue & good sense of those who
compose it.
On another great point, the contrast was equally favorable to the plan
reported by the Committee of the whole. It vested the Executive powers in
a single Magistrate. The plan of N. Jersey, vested them in a
plurality. In order to controul the Legislative authority, you must divide
it. In order to controul the Executive you must unite it. One man will be
more responsible than three. Three will contend among themselves till one
becomes the master of his colleagues. In the triumvirates of Rome first
Cæsar, then Augustus, are witnesses of this truth. The Kings of Sparta,
& the Consuls of Rome prove also the factious consequences of dividing
the Executive Magistracy. Having already taken up so much time he w
not he s
, proceed to any of the other points. Those on which
he had dwelt, are sufficient of themselves; and on the decision of them,
the fate of the others will depend.
Pinkney,
[87]
the whole comes to this,
as he conceived. Give N. Jersey an equal vote, and she will dismiss
her scruples, and concur in the Nat
system. He thought the
Convention authorized to go any length in recommending; which they found
necessary to remedy the evils which produced this Convention.
[87]
Yates
states it was C. C. Pinckney who said this.—
Secret
Proceedings
, etc., 123.
[pg 150]
Elseworth proposed as a more distinctive form of collecting
the mind of the Committee on the subject, "that the Legislative power of
the U. S. should remain in Cong
" This was not seconded, though
it seemed better calculated for the purpose than the 1
st
proposition of M
Patterson in place of which Mr. E. wished to
substitute it.
Randolph, was not scrupulous on the point of power. When the
Salvation of the Republic was at stake, it would be treason to our trust,
not to propose what we found necessary. He painted in strong colours, the
imbecility of the existing Confederacy, & the danger of delaying a
substantial reform. In answer to the objection drawn from the sense of our
Constituents as denoted by their acts relating to the Convention and the
objects of their deliberation, he observed that as each State acted
separately in the case, it would have been indecent for it to have charged
the existing Constitution with all the vices which it might have perceived
in it. The first State that set on foot this experiment would not have
been justified in going so far, ignorant as it was of the opinion of
others, and sensible as it must have been of the uncertainty of a
successful issue to the experiment. There are certainly reasons of a
peculiar nature where the ordinary cautions must be dispensed with; and
this is certainly one of them. He w
not as far as depended on
him leave any thing that seemed necessary, undone. The present moment is
favorable, and is probably the last that will offer.
The true question is whether we shall adhere to the federal plan, or
introduce the national plan. The insufficiency of the former has been
fully displayed by the trial already made. There are but two modes, by
which the end of a Gen
Gov
can be attained: the 1
st
is by coercion as proposed by M
P's plan 2. by real
legislation as prop
by the other
[pg 151]
plan. Coercion he
pronounced to be
impracticable
expensive
cruel to
individuals
. It tended also to habituate the instruments of it to shed
the blood & riot in the Spoils of their fellow Citizens, and
consequently trained them up for the service of Ambition. We must resort
therefore to a National
Legislation over individuals
, for which
Cong
are unfit. To vest such power in them, would be blending
the Legislative with the Executive, contrary to the rec
maxim
on this subject: If the Union of these powers heretofore in Cong
has been safe, it has been owing to the general impotency of that body.
Cong
are moreover not elected by the people, but by the
Legislatures who retain even a power of recall. They have therefore no
will of their own, they are a mere diplomatic body, and are always
obsequious to the views of the States, who are always encroaching on the
authority of the U. States. A provision for harmony among the States, as
in trade, naturalization &.—for crushing rebellion whenever it
may rear its crest—and for certain other general benefits, must be
made. The powers for these purposes can never be given to a body,
inadequate as Congress are in point of representation, elected in the mode
in which they are, and possessing no more confidence than they do: for
notwithstanding what has been said to the contrary, his own experience
satisfied him that a rooted distrust of Congress pretty generally
prevailed. A Nat
Gov
alone, properly constituted,
will answer the purpose; and he begged it to be considered that the
present is the last moment for establing one. After this select experiment,
the people will yield to despair.
The Committee rose & the House adjourned.
Monday June 18. in Committee of the whole
on
the propositions of M
Patterson & M
Randolph.
On motion of M
Dickinson to postpone the 1
st
[pg 152]
Resolution in M
Patterson's plan, in order to take up the
following viz—"that the Articles of Confederation ought to be
revised and amended, so as to render the Government of the U. S. adequate
to the exigencies, the preservation and the prosperity of the Union" the
postponement was agreed to by 10 States, Pen: divided.
Mr. Hamilton,
[88]
had been hitherto silent
on the business before the Convention, partly from respect to others whose
superior abilities age & experience rendered him unwilling to bring
forward ideas dissimilar to theirs, and partly from his delicate situation
with respect to his own State, to whose sentiments as expressed by his
Colleages, he could by no means accede. This crisis however which now
marked our affairs, was too serious to permit any scruples whatever to
prevail over the duty imposed on every man to contribute his efforts for
the public safety & happiness. He was obliged therefore to declare
himself unfriendly to both plans. He was particularly opposed to that from
N. Jersey, being fully convinced, that no amendment of the
Confederation, leaving the States in possession of their Sovereignty could
possibly answer the purpose. On the other hand he confessed he was much
discouraged by the amazing extent of Country in expecting the desired
blessings from any general sovereignty that could be substituted.—As
to the powers of the Convention, he thought the doubts started on that
subject had arisen from distinctions & reasonings too subtle. A
federal
Gov
he conceived to mean an association of independent
Communities into one.
[pg 153]
Different Confederacies have different powers, and exercise them in
different ways. In some instances the powers are exercised over collective
bodies; in others over individuals, as in the German Diet—&
among ourselves in cases of piracy. Great latitude therefore must be given
to the signification of the term. The plan last proposed departs itself
from the
federal
idea, as understood by some, since it is to
operate eventually on individuals. He agreed moreover with the Honble
gentleman from V
(M
R.) that we owed it to our
Country, to do on this emergency whatever we should deem essential to its
happiness. The States sent us here to provide for the exigencies of the
Union. To rely on & propose any plan not adequate to these exigencies,
merely because it was not clearly within our powers, would be to sacrifice
the means to the end. It may be said that the
States
cannot
ratify
a plan not within the purview of the article of the Confederation
providing for alterations & amendments. But may not the States
themselves in which no constitutional authority equal to this purpose
exists in the Legislatures, have had in view a reference to the people at
large. In the Senate of N. York, a proviso was moved, that no act of
the Convention should be binding untill it should be referred to the
people & ratified; and the motion was lost by a single voice only, the
reason assigned ag
st
it being, that it might possibly be found
an inconvenient shackle.
[88]
Hamilton
happened to call upon Madison while the latter was putting the last
touches to this speech and "acknowledged its fidelity, without
suggesting more than a few verbal alterations which were made."—(Cf.
Madison's Writings
, vol. ii.). A brief of the speech from
the Hamilton Papers is given in Lodge's
Works of Hamilton
i., 353, where (i., 375) Yates's report also is quoted.
HAMILTON'S PRINCIPAL SPEECH.
(Reduced.)
The great question is what provision shall we make for the happiness of
our Country? He would first make a comparative examination of the two
plans—prove that there were essential defects in both—and
point out such changes as might render a
national one
, efficacious.—The
great & essential principles necessary for the support of Government
are 1. an active & constant interest in supporting it. This principle
does not exist in the States in favor
[pg 154]
of the federal Gov
They have evidently in a high degree, the esprit de corps. They constantly
pursue internal interests adverse to those of the whole. They have their
particular debts—their particular plans of finance &c. All these
when opposed to, invariably prevail over the requisitions & plans of
Congress. 2. The love of power. Men love power. The same remarks are
applicable to this principle. The States have constantly shewn a
disposition rather to regain the powers delegated by them than to part
with more, or to give effect to what they had parted with. The ambition of
their demagogues is known to hate the controul of the Gen
Government. It may be remarked too that the Citizens have not that anxiety
to prevent a dissolution of the Gen
Gov
as of the
particular Gov
ts
. A dissolution of the latter would be fatal;
of the former would still leave the purposes of Gov
attainable
to a considerable degree. Consider what such a State as Virg
will be in a few years, a few compared with the life of nations. How
strongly will it feel its importance and self-sufficiency? 3. An habitual
attachment of the people. The whole force of this tie is on the side of
the State Gov
. Its sovereignty is immediately before the eyes
of the people: its protection is immediately enjoyed by them. From its
hand distributive justice, and all those acts which familiarize &
endear a Gov
to a people, are dispensed to them. 4.
Force
by which may be understood a
coercion of laws
or
coercion of
arms
. Cong
have not the former except in few cases. In
particular States, this Coercion is nearly sufficient; tho' he held it
in most cases, not entirely so. A certain portion of military force is
absolutely necessary in large communities. Mass
ts
is now
feeling this necessity & making provision for it. But how can this
force be exerted on the States collectively. It is impossible. It amounts
to a war between the parties. Foreign powers also
[pg 155]
will not be idle
spectators. They will interpose, the confusion will increase, and a
dissolution of the Union will ensue. 5.
Influence.
he did not mean
corruption, but a dispensation of those regular honors & emoluments,
which produce an attachment to the Gov
. Almost all the weight
of these is on the side of the States; and must continue so as long as the
States continue to exist. All the passions then we see, of avarice,
ambition, interest, which govern most individuals, and all public bodies,
fall into the current of the States, and do not flow into the stream of
the Gen
Gov
. The former therefore will generally
be an overmatch for the Gen
Gov
and render any
confederacy, in its very nature precarious. Theory is in this case fully
confirmed by experience. The Amphyctionic Council had it would seem ample
powers for general purposes. It had in particular the power of fining and
using force ag
st
delinquent members. What was the consequence.
Their decrees were mere signals of war. The Phocian war is a striking
example of it. Philip at length taking advantage of their disunion, and
insinuating himself into their councils, made himself master of their
fortunes. The German Confederacy affords another lesson. The Authority of
Charlemagne seemed to be as great as could be necessary. The great feudal
chiefs however, exercising their local sovereignties, soon felt the spirit
& found the means of, encroachments, which reduced the imperial
authority to a nominal sovereignty. The Diet has succeeded, which tho'
aided by a Prince at its head, of great authority independently of his
imperial attributes, is a striking illustration of the weakness of
Confederated Governments. Other examples instruct us in the same truth.
The Swiss cantons have scarce any union at all, and have been more than
once at war with one another.—How then are all these evils to be
avoided? only by such a compleat sovereignty in
[pg 156]
the General Goverm
as will turn all the strong principles & passions abovementioned on
its side. Does the scheme of N. Jersey produce this effect? does it
afford any substantial remedy whatever? On the contrary it labors under
great defects, and the defect of some of its provisions will destroy the
efficacy of others. It gives a direct revenue to Cong
but this
will not be sufficient. The balance can only be supplied by requisitions:
which experience proves cannot be relied on. If States are to deliberate
on the mode, they will also deliberate on the object of the supplies, and
will grant or not grant as they approve or disapprove of it. The
delinquency of one will invite and countenance it in others. Quotas too
must in the nature of things be so unequal as to produce the same evil. To
what standard will you resort? Land is a fallacious one. Compare Holland
with Russia; France or Eng
with other countries of Europe, Pen
with N. Carol
will the relative pecuniary abilities in
those instances, correspond with the relative value of land. Take numbers
of inhabitants for the rule and make like comparison of different
countries, and you will find it to be equally unjust. The different
degrees of industry and improvement in different Countries render the
first object a precarious measure of wealth. Much depends too on
situation
Con
N. Jersey & N. Carolina, not being commercial
States & contributing to the wealth of the Commercial ones, can never
bear quotas assessed by the ordinary rules of proportion. They will &
must fail in their duty, their example will be followed, and the union
itself be dissolved. Whence then is the national revenue to be drawn? from
Commerce; even from exports which notwithstanding the com̃on opinion
are fit objects of moderate taxation, from excise, &c &c. These
tho' not equal, are less unequal than quotas. Another destructive
ingredient in the plan, is that
[pg 157]
equality of suffrage which is so
much desired by the small States. It is not in human nature that V
& the large States should consent to it, or if they did that they sh
long abide by it. It shocks too much all ideas of Justice, and every human
feeling. Bad principles in a Gov
tho slow are sure in their
operation, and will gradually destroy it. A doubt has been raised whether
Cong
at present have a right to keep Ships or troops in time
of peace. He leans to the negative. Mr. P'
plan provides
no remedy.—If the powers proposed were adequate, the organization of
Cong
is such that they could never be properly &
effectually exercised. The members of Cong
being chosen by the
States & subject to recall, represent all the local prejudices. Should
the powers be found effectual, they will from time to time be heaped on
them, till a tyrannic sway shall be established. The general power
whatever be its form if it preserves itself, must swallow up the State
powers. Otherwise it will be swallowed up by them. It is ag
st
all the principles of a good Government to vest the requisite powers in
such a body as Cong
. Two Sovereignties can not co-exist within
the same limits. Giving powers to Cong
must eventuate in a bad
Gov
or in no Gov
. The plan of N. Jersey
therefore will not do. What then is to be done? Here he was embarrassed.
The extent of the Country to be governed, discouraged him. The expence of
a general Gov
was also formidable; unless there were such a
diminution of expence on the side of the State Gov
ts
as the
case would admit. If they were extinguished, he was persuaded that great
œconomy might be obtained by substituting a general Gov
He did not mean however to shock the public opinion by proposing such a
measure. On the other hand he saw no
other
necessity for declining
it. They are not necessary for any of the great purposes of commerce,
revenue, or agriculture. Subordinate
[pg 158]
authorities he was
aware would be necessary. There must be district tribunals; corporations
for local purposes. But cui bono, the vast & expensive apparatus now
appertaining to the States. The only difficulty of a serious nature which
occurred to him, was that of drawing representatives from the extremes to
the centre of the Community. What inducements can be offered that will
suffice? The moderate wages for the 1
st
branch would only be a
bait to little demagogues. Three dollars or thereabouts he supposed would
be the utmost. The Senate he feared from a similar cause, would be filled
by certain undertakers who wish for particular offices under the Gov
This view of the subject almost led him to despair that a Republican Gov
could be established over so great an extent. He was sensible at the same
time that it would be unwise to propose one of any other form. In his
private opinion he had no scruple in declaring, supported as he was by the
opinion of so many of the wise & good, that the British Gov
was the best in the world: and that he doubted much whether any thing
short of it would do in America. He hoped Gentlemen of different opinions
would bear with him in this, and begged them to recollect the change of
opinion on this subject which had taken place and was still going on. It
was once thought that the power of Cong
was amply sufficient
to secure the end of their institution. The error was now seen by every
one. The members most tenacious of republicanism, he observed, were as
loud as any in declaiming ag
st
the vices of democracy. This
progress of the public mind led him to anticipate the time, when others as
well as himself would join in the praise bestowed by M
Neckar
on the British Constitution, namely, that it is the only Gov
in the world "which unites public strength with individual security."—In
every Com̃unity where industry is encouraged, there will be a
[pg 159]
division of it into the few & the many. Hence separate interests will
arise. There will be debtors & Creditors &c. Give all power to the
many, they will oppress the few. Give all power to the few, they will
oppress the many. Both therefore ought to have the power, that each may
defend itself ag
st
the other. To the want of this check we owe
our paper money, instalment laws &c. To the proper adjustment of it
the British owe the excellence of their Constitution. Their house of Lords
is a most noble institution. Having nothing to hope for by a change, and a
sufficient interest by means of their property, in being faithful to the
national interest, they form a permanent barrier ag
st
every
pernicious innovation, whether attempted on the part of the Crown or of
the Commons. No temporary Senate will have firmness eno' to answer the
purpose. The Senate (of Maryland) which seems to be so much appealed to,
has not yet been sufficiently tried. Had the people been unanimous &
eager in the late appeal to them on the subject of a paper emission they
would have yielded to the torrent. Their acquiescing in such an appeal is
a proof of it.—Gentlemen differ in their opinions concerning the
necessary checks, from the different estimates they form of the human
passions. They suppose seven years a sufficient period to give the senate
an adequate firmness, from not duly considering the amazing violence &
turbulence of the democratic spirit. When a great object of Gov
is pursued, which seizes the popular passions, they spread like wild fire,
and become irresistable. He appealed to the gentlemen from the N. England
States whether experience had not there verified the remark.—As to
the Executive, it seemed to be admitted that no good one could be
established on Republican Principles. Was not this giving up the merits of
the question; for can there be a good Gov
without a good
Executive. The English Model
[pg 160]
was the only good one on this
subject. The Hereditary interest of the King was so interwoven with that
of the Nation, and his personal emoluments so great, that he was placed
above the danger of being corrupted from abroad—and at the same time
was both sufficiently independent and sufficiently controuled, to answer
the purpose of the institution at home, one of the weak sides of Republics
was their being liable to foreign influence & corruption. Men of
little character, acquiring great power become easily the tools of
intermeddling Neibours. Sweden was a striking instance. The French &
English had each their parties during the late Revolution which was
effected by the predominant influence of the former.—What is the
inference from all these observations? That we ought to go as far in order
to attain stability and permanency, as republican principles will admit.
Let one branch of the Legislature hold their places for life or at least
during good behaviour. Let the Executive also be for life. He appealed to
the feelings of the members present whether a term of seven years, would
induce the sacrifices of private affairs which an acceptance of public
trust would require, so as to ensure the services of the best Citizens. On
this plan we should have in the Senate a permanent will, a weighty
interest, which would answer essential purposes. But is this a Republican
Gov
, it will be asked? Yes if all the Magistrates are
appointed, and vacancies are filled, by the people, or a process of
election originating with the people. He was sensible that an Executive
constituted as he proposed would have in fact but little of the power and
independence that might be necessary. On the other plan of appointing him
for 7 years, he thought the Executive ought to have but little power. He
would be ambitious, with the means of making creatures, and as the object
of his ambition w
be to
prolong
his power, it
[pg 161]
is
probable that in case of a war, he would avail himself of the emergence,
to evade or refuse a degradation from his place. An Executive for life has
not this motive for forgetting his fidelity, and will therefore be a safer
depository of power. It will be objected probably, that such an Executive
will be an
elective Monarch
, and will give birth to the tumults
which characterize that form of Gov
. He w
reply
that
Monarch
is an indefinite term. It marks not either the degree
or duration of power. If this Executive Magistrate w
be a
monarch for life—the other prop
by the Report from the
Com̃ittee of the whole, w
be a monarch for seven years.
The circumstance of being elective was also applicable to both. It had
been observed by judicious writers that elective monarchies w
be the best if they could be guarded ag
st
the
tumults
excited by the ambition and intrigues of competitors. He was not sure that
tumults were an inseparable evil. He rather thought this character of
Elective Monarchies had been taken rather from particular cases than from
general principles. The election of Roman Emperors was made by the
Army
In
Poland
the election is made by great rival
princes
with
independent power, and ample means, of raising commotions. In the German
Empire, The appointment is made by the Electors & Princes, who have
equal motives & means, for exciting cabals & parties. Might not
such a mode of election be devised among ourselves as will defend the
community ag
st
these effects in any dangerous degree? Having
made these observations he would read to the Committee a sketch of a plan
which he sh
prefer to either of those under consideration. He
was aware that it went beyond the ideas of most members. But will such a
plan be adopted out of doors? In return he would ask will the people adopt
the other plan? At present they will adopt neither. But he sees the Union
dissolving or already dissolved—he
[pg 162]
sees evils operating
in the States which must soon cure the people of their fondness for
democracies—he sees that a great progress has been already made
& is still going on in the public mind. He thinks therefore that the
people will in time be unshackled from their prejudices; and whenever that
happens, they will themselves not be satisfied at stopping where the plan
of M
R. w
place them, but be ready to go as far at
least as he proposes. He did not mean to offer the paper he had sketched
as a proposition to the Committee. It was meant only to give a more
correct view of his ideas, and to suggest the amendments which he should
probably propose to the plan of M
R. in the proper stages of
its future discussion. He read his sketch in the words following; to wit
I. The supreme Legislative power of the United States of America to be
vested in two different bodies of men; the one to be called the
Assembly, the other the Senate who together shall form the Legislature
of the United States with power to pass all laws whatsoever subject to
the Negative hereafter mentioned.
II. The Assembly to consist of persons elected by the people to serve
for three years.
III. The Senate to consist of persons elected to serve during good
behaviour; their election to be made by electors chosen for that purpose
by the people: in order to this the States to be divided into election
districts. On the death, removal or resignation of any Senator his place
to be filled out of the district from which he came.
IV. The supreme Executive authority of the United States to be vested in
a Governour to be elected to serve during good behaviour—the
election to be made by Electors chosen by the people in the Election
Districts aforesaid—The authorities & functions of the
Executive to be as follows: to have
[pg 163]
a negative on all
laws about to be passed, and the execution of all laws passed; to have
the direction of war when authorized or begun; to have with the advice
and approbation of the Senate the power of making all treaties; to have
the sole appointment of the heads or chief officers of the departments
of Finance, War and Foreign Affairs; to have the nomination of all other
officers (Ambassadors to foreign Nations included) subject to the
approbation or rejection of the Senate; to have the power of pardoning
all offences except Treason; which he shall not pardon without the
approbation of the Senate.
V. On the death resignation or removal of the Governour his authorities
to be exercised by the President of the Senate till a Successor be
appointed.
VI. The Senate to have the sole power of declaring war, the power of
advising and approving all Treaties, the power of approving or rejecting
all appointments of officers except the heads or chiefs of the
departments of Finance War and foreign affairs.
VII. The supreme Judicial authority to be vested in ——
Judges to hold their offices during good behaviour with adequate and
permanent salaries. This Court to have original jurisdiction in all
causes of capture, and an appellative jurisdiction in all causes in
which the revenues of the General Government or the Citizens of foreign
Nations are concerned.
VIII. The Legislature of the United States to have power to institute
Courts in each State for the determination of all matters of general
concern.
IX. The Governour Senators and all officers of the United States to be
liable to impeachment for mal- and corrupt conduct; and upon conviction
to be removed from office, & disqualified for holding any place of
trust or profit—All impeachments to be tried by a Court to consist
of the Chief —— or Judge of the Superior Court of Law of
each State,
[pg 164]
provided such Judge shall hold his place during good behavior, and have
a permanent salary.
X. All laws of the particular States contrary to the Constitution or
laws of the United States to be utterly void; and the better to prevent
such laws being passed, the Governour or president of each State shall
be appointed by the General Government and shall have a Negative upon
the laws about to be passed in the State of which he is the Governour or
President.
XI. No State to have any forces land or Naval; and the militia of all
the States to be under the sole and exclusive direction of the United
States, the officers of which to be appointed and commissioned by them.
On these several articles he entered into explanatory observations
corresponding with the principles of his introductory reasoning.
[89]
[89]
Copy of a paper communicated to J. M. by Col. Hamilton,
about the close of the convention in Philad
, 1787, which
he said delineated the constitution which he would have wished to be
proposed by the convention. He had stated the principles of it in the
course of the deliberations.
The people of the United States of America do ordain & establish
this Constitution for the government of themselves and their
posterity.
Article I
§ 1. The Legislative power shall be vested in two distinct bodies of
men, one to be called the Assembly, the other the Senate, subject to
the negative hereinafter mentioned.
§ 2. The Executive power, with the qualifications hereinafter
specified, shall be vested in a President of the United States.
§ 3. The Supreme Judicial authority, except in the cases otherwise
provided for in this Constitution, shall be vested in a Court to be
called the
Supreme Court
, to consist of not
less than six nor more than twelve Judges.
Article II
§ 1. The Assembly shall consist of persons to be called
representatives, who shall be chosen, except in the first instance, by
the free male citizens & inhabitants of the several States
comprehended in the Union, all of whom of the age of twenty one years
& upwards shall be entitled to an equal vote.
§ 2. But the first Assembly shall be chosen in the manner prescribed
in the last article and shall consist of one hundred members of whom
N. Hampshire shall have five, Massachusetts thirteen, Rhode
Island two, Connecticut seven, N. York nine, N. Jersey six,
Pennsylvania twelve, Delaware two, Maryland eight, Virginia sixteen,
N. Carolina eight, S. Carolina eight, Georgia four.
§ 3. The Legislature shall provide for the future elections of
Representatives, apportioning them in each State, from time to time,
as nearly as may be to the number of persons described in the 4§ of
the VII article, so as that the whole number of Representatives shall
never be less than one hundred, nor more than —— hundred.
There shall be a Census taken for this purpose within three years
after the first meeting of the Legislature, and within every
successive period of ten years. The term for which Representatives
shall be elected shall be determined by the Legislature but shall not
exceed three years. There shall be a general election at least once in
three years; and the time of service of all the members in each
Assembly shall begin, (except in filling vacancies) on the same day,
and shall always end on the same day.
§ 4. Forty members shall make a House sufficient to proceed to
business; but their number may be increased by the Legislature, yet so
as never to exceed a majority of the whole number of Representatives.
§ 5. The Assembly shall choose its President and other officers, shall
judge of the qualifications & elections of its own members, punish
them for improper conduct in their capacity of Representatives not
extending to life or limb; and shall exclusively possess the power of
impeachment except in the case of the President of the United States;
but no impeachment of a member of the Senate shall be by less than two
thirds of the Representatives present.
§ 6. Representatives may vote by proxy; but no Representative present
shall be proxy for more than one who is absent.
[A]
[A]
Quere, ? (to provide for distant
States).—Note in Madison's hand.
§ 7. Bills for raising revenue, and bills for appropriating monies for
the support of fleets and armies, and for paying the salaries of the
officers of Government, shall originate in the Assembly; but may be
altered and amended by the Senate.
§ 8. The acceptance of an office under the United States by a
Representative shall vacate his seat in the Assembly.
Article III
§ 1. The Senate shall consist of persons to be chosen, except in the
first instance, by Electors elected for that purpose by the Citizens
and inhabitants of the several States comprehended in the Union who
shall have in their own right, or in the right of their wifes, an
Estate in land for not less than life, or a term of years, whereof at
the time of giving their votes there shall be at least fourteen years
unexpired.
§ 2. But the first Senate shall be chosen in the manner prescribed in
the last Article and shall consist of forty members to be called
Senators, of whom N. Hampshire shall have —— Mass
ts
—— R. Island —— Connecticut —— N. York
—— N. Jersey —— Pen
——
Delaware —— Mary
—— Virg
—— N. Carol. —— S. Carol. ——
Geo. ——.
§ 3. The Legislature shall provide for the future elections of
Senators, for which purpose the States respectively, which have more
than one Senator, shall be divided into convenient districts to which
the Senators shall be apportioned. A State having but one Senator
shall be itself a district. On the death, resignation or removal from
office of a Senator his place shall be supplied by a new election in
the district from which he came. Upon each election there shall be not
less than six nor more than twelve electors chosen in a district.
§ 4. The number of Senators shall never be less than forty, nor shall
any State, if the same shall not hereafter be divided, ever have less
than the number allotted to it in the second section of this article;
but the Legislature may increase the whole number of Senators, in the
same proportion to the whole number of Representatives as forty is to
one hundred; and such increase beyond the present number, shall be
apportioned to the respective States in a ratio to the respective
numbers of their representatives.
§ 5. If States shall be divided, or if a new arrangement of the
boundaries of two or more States shall take place, the Legislature
shall apportion the number of Senators (in elections succeeding such
division or new arrangement) to which the constituent parts were
entitled according to the change of situation, having regard to the
number of persons described in the 4 §. of the VII article.
§ 6. The Senators shall hold their places during good behaviour,
removable only by conviction on impeachment for some crime or
misdemeanor. They shall continue to exercise their offices when
impeached untill a conviction shall take place. Sixteen Senators
attending in person shall be sufficient to make a House to transact
business; but the Legislature may increase this number, yet so as
never to exceed a majority of the whole number of Senators. The
Senators may vote by proxy, but no Senator who is present shall be
proxy for more than two who are absent.
§ 7. The Senate shall choose its President and other officers; shall
judge of the qualifications and elections of its members, and shall
punish them for improper conduct in their capacity of Senators; but
such punishment shall not extend to life or limb, nor to expulsion. In
the absence of their President they may choose a temporary President.
The President shall only have a casting vote when the House is equally
divided.
§ 8. The Senate shall exclusively possess the power of declaring war.
No treaty shall be made without their advice and consent; which shall
also be necessary to the appointment of all officers, except such for
which a different provision is made in this Constitution.
Article IV
§ 1. The President of the United States of America, (except in the
first instance) shall be elected in the manner following—The
Judges of the Supreme Court shall within sixty days after a vacancy
shall happen, cause public notice to be given in each State, of such
vacancy, appointing therein three several days for the several
purposes following, to wit, a day for commencing the election of
electors for the purposes hereinafter specified, to be called the
first electors, which day shall not be less than forty, nor more than
sixty days, after the day of the publication of the notice in each
State—another day for the meeting of the electors not less
[than] forty nor more than ninety days from the day for commencing
their election—another day for the meeting of electors to be
chosen by the first electors, for the purpose hereinafter specified,
and to be called the second Electors, which day shall be not less than
forty nor more than sixty days after the day for the meeting of the
first electors.
§ 2. After notice of a vacancy shall have been given there shall be
chosen in each State a number of persons, as the first electors in the
preceding section mentioned, equal to the whole number of the
Representatives and Senators of such State in the Legislature of the
United States; which electors shall be chosen by the Citizens of such
State having an estate of inheritance or for three lives in land, or a
clear personal estate of the value of one thousand Spanish milled
dollars of the present standard.
§ 3. These first electors shall meet in their respective States at the
time appointed, at one place; and shall proceed to vote by ballot for
a President, who shall not be one of their own number, unless the
Legislature upon experiment should hereafter direct otherwise. They
shall cause two lists to be made of the name or names of the person or
persons voted for, which they or the major part of them shall sign
& certify. They shall then proceed each to nominate openly in the
presence of the others, two persons as for second electors, and out of
the persons who shall have the four highest numbers of nominations,
they shall afterwards by ballot by plurality of votes choose two who
shall be the second electors, to each of whom shall be delivered one
of the lists before mentioned. These second electors shall not be any
of the persons voted for as President. A copy of the same list signed
and certified in like manner shall be transmitted by the first
electors to the Seat of the Government of the United States, under a
sealed cover directed to the President of the Assembly, which after
the meeting of the Second electors shall be opened for the inspection
of the two Houses of the Legislature.
§ 4. The second electors shall meet precisely on the day appointed and
not on another day, at one place. The Chief Justice of the Supreme
Court, or if there be no Chief Justice, the Judge senior in office in
such Court, or if there be no one Judge senior in office, some other
Judge of that Court, by the choice of the rest of the Judges or of a
majority of them, shall attend at the same place and shall preside at
the meeting, but shall have no vote. Two thirds of the whole number of
the Electors shall constitute a sufficient meeting for the execution
of their trust. At this meeting the lists delivered to the respective
electors shall be produced and inspected, and if there be any person
who has a majority of the whole number of votes given by the first
electors, he shall be the President of the United States; but if there
be no such person, the second electors so met shall proceed to vote,
by ballot for one of the persons named in the lists who shall have the
three highest numbers of the votes of the first electors; and if upon
the first or any succeeding ballot on the day of their meeting, either
of those persons shall have a number of votes equal to a majority of
the whole number of second electors chosen, he shall be the President.
But if no such choice be made on the day appointed for the meeting
either by reason of the non-attendance of the second electors, or
their not agreeing, or any other matter, the person having the
greatest number of votes of the first electors shall be the President.
§ 5. If it should happen that the Chief Justice or some other Judge of
the Supreme Court should not attend in due time, the second electors
shall proceed to the execution of their trust without him.
§ 6. If the Judges should neglect to cause the notice required by the
first section of this article to be given within the time therein
limited, they may nevertheless cause it to be afterwards given; but
their neglect if wilful, is hereby declared to be an offence for which
they may be impeached, and if convicted they shall be punished as in
other cases of conviction on impeachment.
§ 7. The Legislature shall by permanent laws provide such further
regulations as may be necessary for the more orderly election of the
President; not contravening the provisions herein contained.
§ 8. The President before he shall enter upon the execution of his
office shall take an oath or affirmation, faithfully to execute the
same, and to the utmost of his Judgment & power to protect the
rights of the people, and preserve the Constitution inviolate. This
oath or affirmation shall be administered by the President of the
Senate for the time being in the presence of both Houses of the
Legislature.
§ 9. The Senate and the Assembly shall always convene in Session on
the day appointed for the meeting of the second electors and shall
continue sitting till the President take the oath or affirmation of
office. He shall hold his place during good behavior, removeable only
by conviction upon impeachment for some crime or misdemeanor.
§ 10. The President at the beginning of every meeting of the
Legislature as soon as they shall be ready to proceed to business,
shall convene them together at the place where the Senate shall sit,
and shall communicate to them all such matters as may be necessary for
their information, or as may require their consideration. He may by
message during the Session communicate all other matters which may
appear to him proper. He may, whenever in his opinion the public
business shall require it, convene the Senate and Assembly, or either
of them, and may prorogue them for a time not exceeding forty days at
one prorogation; and if they should disagree about their adjournment,
he may adjourn them to such time as he shall think proper. He shall
have a right to negative all bills, Resolutions or acts of the two
Houses of the Legislature about to be passed into laws. He shall take
care that the laws be faithfully executed. He shall be the commander
in chief of the army and Navy of the United States and of the Militia
within the several States, and shall have the direction of war when
commenced, but he shall not take the actual command in the field of an
army without the consent of the Senate and Assembly. All treaties,
conventions and agreements with foreign nations shall be made by him,
by and with the advice and consent of the Senate. He shall have the
appointment of the Principal or Chief officer of each of the
departments of war, naval Affairs, Finance and Foreign Affairs; and
shall have the nomination; and by and with the consent of the Senate,
the appointment of all other officers to be appointed under the
authority of the United States, except such for whom different
provision is made by this Constitution; and provided that this shall
not be construed to prevent the Legislature, from appointing by name,
in their laws, persons to special and particular trusts created in
such laws; nor shall be construed to prevent principals in offices
merely ministerial, from constituting deputies.—In the recess of
the Senate he may fill vacancies in offices by appointments to
continue in force until the end of the next Session of the Senate, and
he shall commission all officers. He shall have power to pardon all
offences except treason, for which he may grant reprieves, untill the
opinion of the Senate & Assembly can be had, and with their
concurrence may pardon the same.
§ 11. He shall receive a fixed compensation for his services to be
paid to him at stated times, and not to be increased nor diminished
during his continuance in office.
§ 12. If he depart out of the United States without the Consent of the
Senate and Assembly, he shall thereby abdicate his office.
§ 13. He may be impeached for any crime or misdemeanor by the two
Houses of the Legislature, two thirds of each House concurring, and if
convicted shall be removed from office. He may be afterwards tried
& punished in the ordinary course of law. His impeachment shall
operate as a suspension from office until the determination thereof.
§ 14. The President of the Senate shall be vice President of the
United States. On the death, resignation, impeachment, removal from
office, or absence from the United States, of the President thereof,
the Vice President shall exercise all the powers by this Constitution
vested in the President, until another shall be appointed, or untill
he shall return within the United States, if his absence was with the
consent of the Senate and Assembly.
Article V
§ 1. There shall be a Chief Justice of the Supreme Court, who together
with the other Judges thereof, shall hold the office during good
behaviour, removable only by conviction on impeachment for some crime
or misdemeanor. Each Judge shall have a competent salary to be paid to
him at stated times, and not to be diminished during his continuance
in office.
The Supreme Court shall have original jurisdiction in all causes in
which the United States shall be a party, in all controversies between
the United States, and a particular State, or between two or more
States, except such as relate to a claim of territory between the
United States, and one or more States, which shall be determined in
the mode prescribed in the VI article; in all cases affecting foreign
Ministers, Consuls and Agents; and an appellate jurisdiction both as
to law and fact in all cases which shall concern the Citizens of
foreign nations, in all questions between the Citizens of different
States, and in all others in which the fundamental rights of this
Constitution are involved, subject to such exceptions as are herein
contained and to such regulations as the Legislature shall provide.
The Judges of all Courts which may be constituted by the Legislature
shall also hold their places during good behaviour, removeable only by
conviction on impeachment for some crime or misdemeanor, and shall
have competent salaries to be paid at stated times and not to be
diminished during their continuance in office; but nothing herein
contained shall be construed to prevent the Legislature from
abolishing such Courts themselves.
All crimes, except upon impeachment, shall be tried by a Jury of
twelve men; and if they shall have been committed within any State,
shall be tried within such State; and all civil causes arising under
this constitution of the like kind with those which have been
heretofore triable by Jury in the respective States, shall in like
manner be tried by jury; unless in special cases the Legislature shall
think proper to make different provision, to which provision the
concurrence of two thirds of both Houses shall be necessary.
§ 2. Impeachments of the President and Vice President of the U.
States, members of the Senate, the Governours and Presidents of the
several States, the Principal or Chief Officers of the Departments
enumerated in the 10 §. of the 4
th
Article, Ambassadors and
other like Public Ministers, the Judges of the Supreme Court,
Generals, and Admirals of the Navy shall be tried by a Court to
consist of the Judges of the Supreme Court, and the Chief Justice or
first or Senior Judge of the superior Court of law in each State, of
whom twelve shall constitute a Court. A majority of the Judges present
may convict. All other persons shall be tried on impeachment by a
court to consist of the Judges of the Supreme Court and six Senators
drawn by lot, a majority of whom may convict.
Impeachments shall clearly specify the particular offence for which
the party accused is to be tried, and judgment on conviction upon the
trial thereof shall be either removal from office singly, or removal
from office and disqualification for holding any future office or
place of trust; but no Judgment on impeachment shall prevent
prosecution and punishment in the ordinary course of law; provided
that no Judge concerned in such conviction shall sit as Judge on the
second trial. The Legislature may remove the disabilities incurred by
conviction on impeachment.
Article VI
Controversies about the right of territory between the United States
and particular States shall be determined by a Court to be constituted
in manner following. The State or States claiming in opposition to the
United States as parties shall nominate a number of persons, equal to
double the number of the Judges of the Supreme Court for the time
being, of whom none shall be citizens by birth of the States which are
parties, nor inhabitants thereof when nominated, and of whom not more
than two shall have their actual residence in one State. Out of the
persons so nominated the Senate shall elect one half, who together
with the Judges of the Supreme Court, shall form the Court. Two thirds
of the whole number may hear and determine the controversy, by
plurality of voices. The States concerned may at their option claim a
decision by the Supreme Court only. All of the members of the Court
hereby instituted shall, prior to the hearing of the Cause take an
oath impartially and according to the best of their judgments and
consciences, to hear and determine the controversy.
Article VII
§ 1. The Legislature of the United States shall have power to pass all
laws which they shall judge necessary to the common defence and
general welfare of the Union: But no Bill, Resolution, or act of the
Senate and assembly shall have the force of a law until it shall have
received the assent of the President, or of the vice-President when
exercising the powers of the President; and if such assent shall not
have been given within ten days, after such bill, resolution or other
act shall have been presented to him for that purpose, the same shall
not be a law. No bill, resolution or other act not assented to shall
be revived in the same Session of the Legislature. The mode of
signifying such assent, shall be by signing the bill act of [r]
resolution, and returning it so signed to either House of the
Legislature.
§ 2. The enacting stile of all laws shall be "Be it enacted by the
people of the United States of America."
§ 3. No bill of attainder shall be passed, nor any ex post facto law;
nor shall any title of nobility be granted by the United States, or by
either of them; nor shall any person holding an office or place of
trust under the United States without the permission of the
Legislature accept any present, emolument office or title from a
foreign prince or State. Nor shall any Religious Sect, or
denomination, or religious test for any office or place, be ever
established by law.
§ 4. Taxes on lands, houses and other real estate, and capitation
taxes shall be proportioned in each State by the whole number of free
persons, except Indians not taxed, and by three fifths of all other
persons.
§ 5. The two Houses of the Legislature may by joint ballot appoint a
Treasurer of the United States. Neither House in the Session of both
Houses, without the consent of the other shall adjourn for more than
three days at a time. The Senators and Representatives, in attending,
going to and coming from the Session of their respective houses shall
be privileged from arrest, except for crimes and breaches of the
peace. The place of meeting shall always be at the seat of Government
which shall be fixed by law.
§ 6. The laws of the United States, and the treaties which have been
made under the articles of the confederation, and which shall be made
under this Constitution shall be the supreme law of the Land, and
shall be so construed by the Courts of the several States.
§ 7. The Legislature shall convene at least once in each year, which
unless otherwise provided for by law, shall be on the first Monday in
December.
§ 8. The members of the two Houses of the Legislature shall receive a
reasonable compensation for their services, to be paid out of the
Treasury of the United States and ascertained by law. The law for
making such provision shall be passed with the concurrence of the
first Assembly and shall extend to succeeding Assemblies; and no
succeeding assembly shall concur in an alteration of such provision,
so as to increase its own compensation; but there shall be always a
law in existence for making such provision.
Article VIII
§ 1. The Governour or President of each State shall be appointed under
the authority of the United States, and shall have a right to negative
all laws about to be passed in the State of which he shall be
Governour or President, subject to such qualifications and
regulations, as the Legislature of the United States shall prescribe.
He shall in other respects have the same powers only which the
Constitution of the State does or shall allow to its Governour or
President, except as to the appointment of Officers of the Militia.
§ 2. Each Governour or President of a State shall hold his office
until a successor be actually appointed, unless he die, or resign or
be removed from office by conviction on impeachment. There shall be no
appointment of such Governor or President in the Recess of the Senate.
The Governours and Presidents of the several States at the time of the
ratification of this Constitution shall continue in office in the same
manner and with the same powers as if they had been appointed pursuant
to the first section of this article.
The officers of the Militia in the several States may be appointed
under the authority of the U. States; the Legislature whereof may
authorize the Governors or Presidents of States to make such
appointments with such restrictions as they shall think proper.
Article IX
§ 1. No person shall be eligible to the office of President of the
United States unless he be now a Citizen of one of the States, or
hereafter be born a Citizen of the United States.
§ 2. No person shall be eligible as a Senator or Representative unless
at the time of his election he be a Citizen and inhabitant of the
State in which he is chosen; provided that he shall not be deemed to
be disqualified by a temporary absence from the State.
§ 3. No person entitled by this Constitution to elect or to be elected
President of the United States, or a Senator or Representative in the
Legislature thereof, shall be disqualified but by the conviction of
some offence for which the law shall have previously ordained the
punishment of disqualification. But the Legislature may by law provide
that persons holding offices under the United States or either of them
shall not be eligible to a place in the Assembly or Senate, and shall
be during their continuance in office suspended from sitting in the
Senate.
§ 4. No person having an office or place of trust under the United
States shall without permission of the Legislature accept any present
emolument office or title from any foreign Prince or State.
§ 5. The Citizens of each State shall be entitled to the rights
privileges and immunities of Citizens in every other State; and full
faith and credit shall be given in each State to the public acts,
records and judicial proceedings of another.
§ 6. Fugitives from justice from one State who shall be found in
another shall be delivered up on the application of the State from
which they fled.
§ 7. No new State shall be erected within the limits of another, or by
the junction of two or more States, without the concurrent consent of
the Legislatures of the United States and of the States concerned. The
Legislature of the United States may admit new States into the Union.
§ 8. The United States are hereby declared to be bound to guarantee to
each State a Republican form of Government, and to protect each State
as well against domestic violence as foreign invasion.
§ 9. All Treaties, Contracts and engagements of the United States of
America under the articles of Confederation and perpetual Union, shall
have equal validity under this Constitution.
§ 10. No State shall enter into a Treaty, Alliance, or contract with
another, or with a foreign power without the consent of the United
States.
§ 11. The members of the Legislature of the United States and of each
State, and all officers Executive & Judicial of the one and of the
other shall take an oath or affirmation to support the Constitution of
the United States.
§ 12. This Constitution may receive such alterations and amendments as
may be proposed by the Legislature of the United States, with the
concurrence of two thirds of the members of both Houses, and ratified
by the Legislatures of, or by Conventions of deputies chosen by the
people in, two thirds of the States composing the Union.
Article X
This Constitution shall be submitted to the consideration of
Conventions in the several States, the members whereof shall be chosen
by the people of such States respectively under the direction of their
respective Legislatures. Each Convention which shall ratify the same,
shall appoint the first representatives and Senators from such State
according to the rule prescribed in the —— § of the
—— article. The representatives so appointed shall
continue in office for one year only. Each Convention so ratifying
shall give notice thereof to the Congress of the United States,
transmitting at the same time a list of the Representatives and
Senators chosen. When the Constitution shall have been duly ratified,
Congress shall give notice of a day and place for the meeting of the
Senators and Representatives from the several States; and when these
or a majority of them shall have assembled according to such notice,
they shall by joint ballot, by plurality of votes, elect a President
of the United States; and the Constitution thus organized shall be
carried into effect.—
Mad. MSS.
"Col: Hamilton did not propose in the Convention any plan of a
Constitution. He had sketched an outline which he read as part of a
speech; observing that he did not mean it as a proposition, but only
to give a more correct view of his ideas.
"Mr. Patterson regularly proposed a plan which was discussed &
voted on."—Madison to John Quincy Adams, Montpellier, Nov. 2,
1818,
Dept. of State MSS.
, Miscellaneous Letters.
Committee rose & the House Adjourned.
[pg 165]
Tuesday June 19
th
in Committee of Whole on
the Propositions of M
Patterson
,—
[90]
[90]
This was
the last session of the Convention in Committee of the Whole.
The substitute offered yesterday by M
Dickenson
[pg 166]
being rejected by a vote now taken on it; Con. N. Y. N. J. Del. ay.
Mass. P
V. N. C. S. C. Geo. no.
Mary
divided M
Patterson's plan was again at large before the
Committee.
Madison. Much stress has been laid by some
[pg 168]
gentlemen on the want of power in the Convention to propose any other than
federal
plan. To what had been answered by others, he would only
add,
that
neither of the characteristics attached to a
federal
plan would
support this objection. One characteristic, was that in a
federal
Government, the
power was exercised not on the people individually; but on the people
collectively
on the
States
. Yet in some instances as in piracies, captures &c.
the
existing Confederacy, and in many instances the amendments to it proposed
by M
Patterson, must operate immediately on individuals. The
other
characteristic was, that a
federal
Gov
derived its
appointments not immediately from the people, but from the States which
they respectively composed.
Here too were facts on the other side. In two of
the States, Connect
& Rh. Island, the delegates to Cong
were chosen, not by the Legislatures, but by the
people at large; and the plan of M
P. intended no change in this particular.
It had been alledged (by M
Patterson), that the Confederation
having been formed by unanimous
[pg 175]
consent, could be dissolved by
unanimous Consent only. Does this doctrine result from the nature of
compacts? does it arise from any particular stipulation in the articles of
Confederation? If we consider
[pg 176]
the federal Union as analagous to
the fundamental compact by which individuals compose one Society, and
which must in its theoretic origin at least, have been the unanimous act
of the component members, it cannot be said that no dissolution of the
compact can be effected without unanimous consent. A breach of the
fundamental principles of the compact by a part of the Society would
certainly absolve the other part from their obligations to it. If the
breach of
any
article by
any
of the parties, does not set
the others at liberty, it is because, the contrary is
implied
in
the compact itself, and particularly by that law of it, which gives an
indefinite authority to the majority to bind the whole in all cases. This
latter circumstance shews that we are not to consider the federal Union as
analagous to the social compact of individuals: for if it were so, a
Majority would have a right to bind the rest, and even to form a new
Constitution for the whole, which the Gentl
from N. Jersey
would be among the last to admit. If we consider the federal Union as
analagous not to the Social compacts
[pg 177]
among individual men:
but to the conventions among individual States, What is the doctrine
resulting from these conventions? Clearly, according to the Expositors of
the law of Nations, that a breach of any one article by any one party,
leaves all the other parties at liberty, to consider the whole convention
as dissolved, unless they choose rather to compel the delinquent party to
repair the breach. In some treaties indeed it is expressly stipulated that
a violation of particular articles shall not have this consequence, and
even that particular articles shall remain in force during war, which in
general is understood to dissolve all subsisting Treaties. But are there
any exceptions of this sort to the Articles of Confederation? So far from
it that there is not even an express stipulation that force shall be used
to compell an offending member of the Union to discharge its duty. He
observed that the violations of the federal articles had been numerous
& notorious. Among the most notorious was an act of N. Jersey
herself; by which she
expressly refused
to comply with a
Constitutional requisition of Cong
and yielded no farther to
the expostulations of their deputies, than barely to rescind her vote of
refusal without passing any positive act of compliance. He did not wish to
draw any rigid inferences from these observations. He thought it proper
however that the true nature of the existing confederacy should be
investigated, and he was not anxious to strengthen the foundations on
which it now stands.
Proceeding to the consideration of M
Patterson's plan, he
stated the object of a proper plan to be twofold. 1. to preserve the
Union. 2. to provide a Governm
that will remedy the evils felt
by the States both in their united and individual capacities. Examine M
P'
plan, & say whether it promises satisfaction in
these respects.
1. Will it prevent the violations of the law of
[pg 178]
nations & of
Treaties which if not prevented must involve us in the calamities of
foreign wars? The tendency of the States to these violations has been
manifested in sundry instances. The files of Cong
contain
complaints already, from almost every Nation with which treaties have been
formed. Hitherto indulgence has been shewn to us. This cannot be the
permanent disposition of foreign nations. A rupture with other powers is
among the greatest of national calamities. It ought therefore to be
effectually provided that no part of a nation shall have it in its power
to bring them on the whole. The existing Confederacy does not sufficiently
provide against this evil. The proposed amendment to it does not supply
the omission. It leaves the will of the States as uncontrouled as ever.
2. Will it prevent encroachments on the federal authority? A tendency to
such encroachments has been sufficiently exemplified, among ourselves, as
well as in every other confederated republic antient and modern. By the
federal articles, transactions with the Indians appertain to Cong
Yet in several instances, the States have entered into treaties & wars
with them. In like manner no two or more States can form among themselves
any treaties &c. without the consent of Cong
. Yet Virg
& Mary
in one instance—Pen
& N. Jersey
in another, have entered into compacts, without previous application or
subsequent apology. No State again can of right raise troops in time of
peace without the like consent. Of all cases of the league, this seems to
require the most scrupulous observance. Has not Mass
ts
notwithstanding, the most powerful member of the Union, already raised a
body of troops? Is she not now augmenting them, without having even
deigned to apprise Cong
of Her intention? In fine—Have
we not seen the public land dealt out to Con
to bribe her
acquiescence in the decree constitutionally
[pg 179]
awarded ag
st
her claim on the territory of Pen
: for no other possible
motive can account for the policy of Cong
in that measure?—If
we recur to the examples of other confederacies, we shall find in all of
them the same tendency of the parts to encroach on the authority of the
whole. He then reviewed the Amphyctionic & Achæan confederacies among
the antients, and the Helvetic, Germanic & Belgic among the moderns,
tracing their analogy to the U. States in the constitution and extent of
their federal authorities—in the tendency of the particular members
to usurp on these authorities, and to bring confusion & ruin on the
whole.—He observed that the plan of Mr. Pat[er]son, besides omitting
a controul over the States as a general defence of the federal
prerogatives was particularly defective in two of its provisions. 1. Its
ratification was not to be by the people at large, but by the
legislatures
It could not therefore render the acts of Cong
in pursuance of
their powers, even legally
paramount
to the acts of the States. 2.
It gave to the federal Tribunal an appellate jurisdiction only—even
in the criminal cases enumerated. The necessity of any such provision
supposed a danger of undue acquittals in the State tribunals, of what
avail c
an appellate tribunal be, after an acquittal? Besides
in most if not all of the States, the Executives have by their respective
Constitutions
, the right of pard
. How could this be
taken from them by a
legislative
ratification only?
3. Will it prevent trespasses of the States on each other? Of these enough
has been already seen. He instanced Acts of Virg
Maryland which gave a preference to their own Citizens in cases where the
Citizens of other States are entitled to equality of privileges by the
Articles of Confederation. He considered the emissions of paper money
& other kindred measures as also aggressions. The States
[pg 180]
relatively to one another being each of them either Debtor or Creditor;
The creditor States must suffer unjustly from every emission by the debtor
States. We have seen retaliating Acts on the subject which threatened
danger not to the harmony only, but the tranquillity of the Union. The
plan of M
Paterson, not giving even a negative on the Acts of
the States, left them as much at liberty as ever to execute their
unrighteous projects ag
st
each other.
4. Will it secure the internal tranquillity of the States themselves? The
insurrections in Mass
ts
admonished all the States of the danger
to which they were exposed. Yet the plan of M
P. contained no
provisions for supplying the defect of the Confederation on this point.
According to the Republican theory indeed, Right & power being both
vested in the majority, are held to be synonymous. According to fact &
experience, a minority may in an appeal to force be an overmatch for the
majority. 1. If the minority happen to include all such as possess the
skill & habits of military life, with such as possess the great
pecuniary resources, one third may conquer the remaining two thirds. 2.
one third of those who participate in the choice of rulers may be rendered
a majority by the accession of those whose poverty disqualifies them from
a suffrage, & who for obvious reasons may be more ready to join the
standard of sedition than that of established Government. 3. where slavery
exists, the Republican Theory becomes still more fallacious.
5. Will it secure a good internal legislation & administration to the
particular States? In developing the evils which vitiate the political
system of the U. S. it is proper to take into view those which
prevail within the States individually as well as those which affect them
collectively: Since the former indirectly affect the whole; and there is
great reason to believe that the pressure of them had a full
[pg 181]
share in the motives which produced the present Convention. Under this
head he enumerated and animadverted on 1. the multiplicity of the laws
passed by the several States. 2. the mutability of their laws. 3. the
injustice of them. 4. the impotence of them: observing that M
Patterson's plan contained no remedy for this dreadful class of evils,
and could not therefore be received as an adequate provision for the
exigencies of the Community.
6. Will it secure the Union ag
st
the influence of foreign
powers over its members. He pretended not to say that any such influence
had yet been tried: but it was naturally to be expected that occasions
would produce it. As lessons which claimed particular attention, he cited
the intrigues practised among the Amphyctionic Confederates first by the
Kings of Persia, and afterwards fatally by Philip of Macedon: Among the
Achæans, first by Macedon & afterwards no less fatally by Rome: among
the Swiss by Austria, France & the lesser neighbouring powers: among
the members of the Germanic Body by France, England, Spain & Russia—And
in the Belgic Republic, by all the great neighbouring powers. The plan of
Patterson, not giving to the general Councils any negative
on the will of the particular States, left the door open for the like
pernicious Machinations among ourselves.
7. He begged the smaller States which were most attached to M
Patterson's plan to consider the situation in which it would leave
them. In the first place they would continue to bear the whole expence of
maintaining their Delegates in Congress. It ought not to be said that if
they were willing to bear this burthen, no others had a right to complain.
As far as it led the small States to forbear keeping up a representation,
by which the public business was delayed, it was evidently a matter of
common concern. An examination of the minutes of Congress
[pg 182]
would satisfy every one that the public business had been frequently
delayed by this cause; and that the States most frequently unrepresented
in Cong
were not the larger States. He reminded the Convention
of another consequence of leaving on a small State the burden of
maintaining a Representation in Cong
. During a considerable
period of the War, one of the Representatives of Delaware, in whom alone
before the signing of the Confederation the entire vote of that State and
after that event one half of its vote, frequently resided, was a Citizen
& Resident of Pen
and held an office in his own State
incompatible with an appointment from it to Cong
. During
another period, the same State was represented by three delegates two of
whom were citizens of Penn
and the third a Citizen of New
Jersey. These expedients must have been intended to avoid the burden of
supporting Delegates from their own State. But whatever might have been y
cause, was not in effect the vote of one State doubled, and the influence
of another increased by it? In the 2
place the coercion, on
which the efficacy of the plan depends, can never be exerted but on
themselves. The larger States will be impregnable, the smaller only can
feel the vengeance of it. He illustrated the position by the history of
the Amphyctionic confederates: and the ban of the German Empire. It was
the cobweb w
ch
could entangle the weak, but would be the sport
of the strong.
8. He begged them to consider the situation in which they would remain in
case their pertinacious adherence to an inadmissible plan, should prevent
the adoption of any plan. The contemplation of such an event was painful;
but it would be prudent to submit to the task of examining it at a
distance, that the means of escaping it might be the more readily
embraced. Let the Union of the States be dissolved, and one of two
consequences must happen.
[pg 183]
Either the States must remain
individually independent & sovereign; or two or more Confederacies
must be formed among them. In the first event would the small States be
more secure ag
st
the ambition & power of their larger
neighbours, than they would be under a General Government pervading with
equal energy every part of the Empire, and having an equal interest in
protecting every part ag
st
every other part? In the second, can
the smaller expect that their larger neighbours would confederate with
them on the principle of the present Confederacy, which gives to each
member, an equal suffrage; or that they would exact less severe
concessions from the smaller States, than are proposed in the scheme of M
Randolph?
The great difficulty lies in the affair of Representation; and if this
could be adjusted, all others would be surmountable. It was admitted by
both the gentlemen from N. Jersey, (M
Brearly and M
Patterson) that it would not be
just to allow Virg
which was 16 times as large as Delaware an equal vote only. Their language
was that it would not be
safe for Delaware
to allow Virg
16 times as many votes. The expedient proposed by them was that all the
States should be thrown into one mass and a new partition be made into 13
equal parts. Would such a scheme be practicable? The dissimilarities
existing in the rules of property, as well as in the manners, habits and
prejudices of the different States, amounted to a prohibition of the
attempt. It had been found impossible for the power of one of the most
absolute princes in Europe (K. of France) directed by the wisdom of one of
the most enlightened and patriotic Ministers (M
Neckar) that
any age has produced, to equalize in some points only the different usages
& regulations of the different provinces. But admitting a general
amalgamation and repartition of the States to be practicable, and
[pg 184]
the danger apprehended by the smaller States from a proportional
representation to be real; would not a particular and voluntary coalition
of these with their neighbours, be less inconvenient to the whole
community, and equally effectual for their own safety. If N. Jersey
or Delaware conceived that an advantage would accrue to them from an
equalization of the States, in which case they would necessarily form a
junction with their neighbours, why might not this end be attained by
leaving them at liberty by the Constitution to form such a junction
whenever they pleased? And why should they wish to obtrude a like
arrangement on all the States, when it was, to say the least, extremely
difficult, would be obnoxious to many of the States, and when neither the
inconveniency, nor the benefit of the expedient to themselves, would be
lessened by confining it to themselves.—The prospect of many new
States to the Westward was another consideration of importance. If they
should come into the Union at all, they would come when they contained but
few inhabitants. If they sh
be entitled to vote according to
their proportions of inhabitants, all would be right & safe. Let them
have an equal vote, and a more objectionable minority than ever might give
law to the whole.
[91]
[91]
"Mr.
Dickinson supposed that there were good regulations in both. Let us
therefore contrast the one with the other, and consolidate such parts
of them as the committee approve."—Yates,
Secret Proceedings
etc., 140.
On a question for postponing generally the 1
st
proposition of M
Patterson's plan, it was agreed to: N. Y. & N. J. only
being no.
On the question moved by M
King whether the Com̃itee
should rise & M
Randolph's proposition be reported
without alteration, which was in fact a question whether M
R's
should be adhered to as preferable to those of M
Patterson;
[pg 185]
Mass
ts
ay. Con
ay. N. Y. no.
N. J. no. P
ay. Del. no. M
div
ay. N. C. ay. S. C. ay. Geo. ay.
Copy of the Resol
ns
of Mr. R. as altered in Com
and
reported to the House.
(Of M
Randolph's plan as reported from the Com̃ittee)—the
1. propos: "that a Nat
Gov
ought to be established
consisting &c." being taken up in the House.
Wilson observed that by a Nat
Gov
he
did not mean one that would swallow up the State Gov
ts
as
seemed to be wished by some gentlemen. He was tenacious of the idea of
preserving the latter. He thought, contrary to the opinion of (Col.
Hamilton) that they might not only subsist but subsist on friendly terms
with the former. They were absolutely necessary for certain purposes which
the former could not reach. All large Governments must be subdivided into
lesser jurisdictions. As Examples he mentioned Persia, Rome, and
particularly the divisions & subdivisions of England by Alfred.
Col. Hamilton coincided with the proposition as it stood in the Report. He
had not been understood yesterday. By an abolition of the States, he meant
that no boundary could be drawn between the National & State
Legislatures; that the former must therefore have indefinite authority. If
it were limited at all, the rivalship of the States would gradually
subvert it. Even as Corporations the extent of some of them as V
Mass
ts
&c would be formidable.
As States
, he thought
they ought to be abolished. But he admitted the necessity of leaving in
them, subordinate jurisdictions. The examples of Persia & the Roman
Empire, cited by (M
Wilson) were he thought in favor of his
doctrine: the great powers delegated to the Satraps & proconsuls
having frequently produced revolts, and schemes of independence.
[pg 186]
King wished as every thing depended on this proposition,
that no objections might be improperly indulged ag
st
the
phraseology of it. He conceived that the import of the term "States"
"Sovereignty" "
national
" "federal," had been often used &
applied in the discussions inaccurately & delusively. The States were
not "Sovereigns" in the sense contended for by some. They did not possess
the peculiar features of sovereignty, they could not make war, nor peace,
nor alliances nor treaties. Considering them as political Beings, they
were dumb, for they could not speak to any for[~e]gn Sovereign whatever.
They were deaf, for they could not hear any propositions from such
Sovereign. They had not even the organs or faculties of defence or
offence, for they could not of themselves raise troops, or equip vessels,
for war. On the other side, if the Union of the States comprises the idea
of a confederation, it comprises that also of consolidation. A Union of
the States is a Union of the men composing them, from whence a
national
character results to the whole. Cong
can act alone without the
States—they can act & their acts will be binding ag
st
the Instructions of the States. If they declare war: war is de jure
declared—captures made in pursuance of it are lawful—no Acts
of the States can vary the situation, or prevent the judicial
consequences. If the States therefore retained some portion of their
sovereignty, they had certainly divested themselves of essential portions
of it. If they formed a confederacy in some respects—they formed a
Nation in others. The Convention could clearly deliberate on & propose
any alterations that Cong
could have done under y
federal articles, and Could not Cong
propose by virtue of the
last article, a change in any article whatever; and as well that relating
to the equality of suffrage, as any other. He made these remarks to
obviate some scruples which had been expressed.
[pg 187]
He doubted much the
practicability of annihilating the States; but thought that much of their
power ought to be taken from them.
[92]
[92]
King, in
his notes, gives a résumé of his speech. It illustrates the accuracy
of Madison's reporting:
"Answer (R. King) The States under the confed. are not sovereign
States they can do no act but such as are of a subordinate nature or
such as terminate in themselves—and even these are restrained—coinage,
P. office &c they are wholly incompetent to the exercise of any
of the gt. & distinguishing acts of sovereignty—They can
neither make nor receive (embassies) to or from any other sovereign—they
have not the powers of injuring another or of defending themselves
from an Injury offered from one another—they are deaf, dumb
and impotent—these Faculties are yielded up and the U. S. in
C. Assd. hold and possess them, and they alone can exercise them—they
are so far out of the controul of the separate States yt. if every
State in the Union was to instruct yr. Deleg., and those Delegates
within ye powers of the Arts. of Union shd. do an act in violation
of their Instructions it wd. nevertheless be valid. If they declared
a war, any giving aid or comfort to the enemy wd. be Treason; if
peace, any capture on the high seas wd. be piracy. This remark
proves yt. the States are now subordinate corporations or societies
and not sovereigns—these imperfect States are the confederates
and they are the electors of the magistrates who exercise the
national sovereignty. The Articles of Confedr. and perpetual Union,
are partly federal & partly of the nature of a constitution or
form of Govt. arising from and applying to the Citizens of the U. S. &
not from the individual States.
"The only criterion of determining what is federal & what is
national is this, those acts which are for the government of the
States only are purely federal, those which are for the government
of the Citizens of the individual States are national and not
federal.
"If then the articles of Confedr. & perpetual union have this
twofold capacity, and if they provide for an alteration in a certain
mode, why may not they be so altered as that the federal article may
be changed to a national one, and the national to a federal? I see
no argument that can be objected to the authority. The 5th article
regulates the influence of the several States and makes them equal—does
not the confed. authorize this alteration, that instead of this
Equality, one state may have double the Influence of another—I
conceive it does—and so of every Article except that wh.
destroys the Idea of a confedy. I think it may be proved that every
article may be totally altered provided you have one guarantying to
each State the right of regulating its private & internal
affairs in the manner of a subordinate corporation.
"But admitting that the Arts, of Confed. & perpet. Union, or the
powers of the Legis. did not extend to the proposed Reform; yet the
public Deputations & the public Danger require it—the
system proposed to be adopted is no scheme of a day, calculated to
postpone the hour of Danger, & thus leave it to fall with double
ruin on our successors—It is no crude and undigested plan; the
child of narrow and unextensive views, brought forward under the
Auspices of Cowardice & Irresolution—It is a measure of
Decision, it is the foundation of Freedom & of national Glory.
It will draw on itself and be able to support the severest scrutiny
& Examination. It is no idle experiment, no romantic speculation—the
measure forces itself upon wise men, and if they have not firmness
to look it in the face and protect it—Farewell to the Freedom
of our Government—our military glory will be tarnished and our
boasts of Freedom will be the scorn of the Enemies of Liberty."—
Life
and Correspondence of Rufus King
, i., 602, n.
[pg 188]
Martin.
[93]
said he considered that
the separation from G. B. placed the 13 States in a state of Nature
towards each other; that they would have remained in that state till this
time, but for the confederation; that they entered into the Confederation
on the footing of equality; that they met now to amend it on the same
footing; and that he could never accede to a plan that would introduce an
inequality and lay 10 States at the mercy of V
Mass
ts
and Penn
[93]
"Mr.
Martin was educated for the Bar, and is Attorney general for the State
of Maryland. This Gentleman possesses a good deal of information, but
he has a very bad delivery, and so extremely prolix, that he never
speaks without tiring the patience of all who hear him. He is about 34
years of age."—Pierce's Notes,
Am. Hist. Rev.
, iii.,
330.
Wilson, could not admit the doctrine that when the Colonies
became independent of G. Britain, they became independent also of each
other. He read the declaration of Independence, observing thereon that the
United Colonies
were declared to be free & independent States;
and inferring that they were independent, not
individually
but
Unitedly
and that they were confederated as they were independent, States.
[pg 189]
Col. Hamilton assented to the doctrine of M
Wilson. He denied
the doctrine that the States were thrown into a State of Nature. He was
not yet prepared to admit the doctrine that the Confederacy, could be
dissolved by partial infractions of it. He admitted that the States met
now on an equal footing but could see no inference from that against
concerting a change of the system in this particular. He took this
occasion of observing for the purpose of appeasing the fears of the small
States, that two circumstances would render them secure under a National
Gov
in which they might lose the equality of rank they now
held: one was the local situation of the 3 largest States Virg
Mass
ts
& P
. They were separated from each other
by distance of place, and equally so, by all the peculiarities which
distinguish the interests of one State from those of another. No
combination therefore could be dreaded. In the second place, as there was
a gradation in the States from V
the largest down to Delaware
the smallest, it would always happen that ambitious combinations among a
few States might & w
be counteracted by defensive
combinations of greater extent among the rest. No combination has been
seen among the large Counties merely as such, ag
st
lesser
Counties. The more close the Union of the States, and the more compleat
the authority of the whole: the less opportunity will be allowed to the
stronger States to injure the weaker.
Adj
Wednesday June 20. 1897. In Convention.
William Blount from N. Carolina took his seat.
st
propos: of the Report of Com
of the whole,
before the House.
Elseworth 2
ded
by M
Gorham, moves to
alter it so as to run "that the Government of the United
[pg 190]
States ought to consist of a supreme legislative, Executive and
Judiciary." This alteration he said would drop the word
national
and retain the proper title "the United States." He could not admit the
doctrine that a breach of any of the federal articles could dissolve the
whole. It would be highly dangerous not to consider the Confederation as
still subsisting. He wished also the plan of the Convention to go forth as
an amendment of the articles of the Confederation, since under this idea
the authority of the Legislatures could ratify it. If they are unwilling,
the people will be so too. If the plan goes forth to the people for
ratification several succeeding Conventions within the States would be
unavoidable. He did not like these conventions. They were better fitted to
pull down than to build up Constitutions.
Randolph. did not object to the change of expression, but
apprised the gentleman who wished for it that he did not admit it for the
reasons assigned; particularly that of getting rid of a reference to the
people for ratification. The motion of M
Elsew
th
was acquiesced in nem: con:
The 2
Resol: "that the National Legislature ought to consist
of two branches" taken up, the word "national" struck out as of course.
Lansing.
observed that the true question here was,
whether the Convention would adhere to or depart from the foundation of
the present Confederacy; and moved instead of the 2
Resolution, "that the powers of Legislation be vested in the U. States in
Congress." He had already assigned two reasons ag
st
such an
innovation as was proposed: 1. the want of competent powers in the
Convention.—2. the state of the public mind. It had been observed by
(M
Madison) in discussing the first point, that in two States
the Delegates to Cong
were chosen by the people.
Notwithstanding the first appearance
[pg 191]
of this remark, it
had in fact no weight, as the Delegates however chosen, did not represent
the people merely as so many individuals; but as forming a Sovereign
State. (Mr. Randolph) put it, he said, on its true footing namely that the
public safety superseded the scruple arising from the review of our
powers. But in order to feel the force of this consideration, the same
impression must be had of the public danger. He had not himself the same
impression, and could not therefore dismiss his scruple. (M
Wilson) contended that as the Convention were only to recommend, they
might recommend what they pleased. He differed much from him. Any act
whatever of so respectable a body must have a great effect, and if it does
not succeed, will be a source of great dissentions. He admitted that there
was no certain criterion of the Public mind on the subject. He therefore
recurred to the evidence of it given by the opposition in the States to
the scheme of an Impost. It could not be expected that those possessing
Sovereignty could ever voluntarily part with it. It was not to be expected
from any one State, much less from thirteen. He proceeded to make some
observations on the plan itself and the argum
ts
urged in
support of it. The point of Representation could receive no elucidation
from the case of England. The corruption of the boroughs did not proceed
from their comparative smallness; but from the actual fewness of the
inhabitants, some of them not having more than one or two. A great
inequality existed in the Counties of England. Yet the like complaint of
peculiar corruption in the small ones had not been made. It had been said
that Congress represent the State Prejudices: will not any other body
whether chosen by the Legislatures or people of the States, also represent
their prejudices? It had been asserted by his colleague (Col. Hamilton)
that there was no
[pg 192]
coincidence of interests among the large States that ought to excite fears
of oppression in the smaller. If it were true that such a uniformity of
interests existed among the States, there was equal safety for all of
them, whether the representation remained as heretofore, or were
proportioned as now proposed. It is proposed that the Gen
Legislature shall have a negative on the laws of the States. Is it
conceivable that there will be leisure for such a task? There will on the
most moderate calculation, be as many Acts sent up from the States as
there are days in the year. Will the members of the General Legislature be
competent Judges? Will a gentleman from Georgia be a judge of the
expediency of a law which is to operate in N. Hampshire. Such a
Negative would be more injurious than that of Great Britain heretofore
was. It is said that the National Gov
must have the influence
arising from the grant of offices and honors. In order to render such a
Government effectual he believed such an influence to be necessary. But if
the States will not agree to it, it is in vain, worse than in vain to make
the proposition. If this influence is to be attained, the States must be
entirely abolished. Will any one say this would ever be agreed to? He
doubted whether any Gen
Government equally beneficial to all
can be attained. That now under consideration he is sure, must be utterly
unattainable. He had another objection. The system was too novel &
complex. No man could foresee what its operation will be either with
respect to the Gen
Gov
or the State Gov
ts
One or other it has been surmised must absorb the whole.
Col. Mason. did not expect this point would have been reagitated. The
essential differences between the two plans, had been clearly stated. The
principal objections ag
st
that of M
R. were the
want
of power
& the
want of practicability
. There can be no
[pg 193]
weight in the first as the fiat is not to be
here
, but in the
people. He thought with his colleague M
R. that there were
besides certain crisises, in which all the ordinary cautions yielded to
public necessity. He gave as an example, the eventual Treaty with G. B. in
forming which the Com̃
srs
of the U. S. had boldly
disregarded the improvident shackles of Cong
had given to
their Country an honorable & happy peace, and instead of being
censured for the transgression of their powers, had raised to themselves a
monument more durable than brass. The
impracticability
of gaining
the public concurrence he thought was still more groundless. (M
Lansing) had cited the attempts of Congress to gain an enlargement of
their powers, and had inferred from the miscarriage of these attempts, the
hopelessness of the plan which he (M
L) opposed. He thought a
very different inference ought to have been drawn; viz that the plan which
(M
L) espoused, and which proposed to augment the powers of
Congress, never could be expected to succeed. He meant not to throw any
reflections on Cong
as a body, much less on any particular
members of it. He meant however to speak his sentiments without reserve on
this subject; it was a privilege of age, and perhaps the only compensation
which nature had given for, the privation of so many other enjoyments: and
he should not scruple to exercise it freely. Is it to be thought that the
people of America, so watchful over their interests; so jealous of their
liberties, will give up their all, will surrender both the sword and the
purse, to the same body, and that too not chosen immediately by
themselves? They never will. They never ought. Will they trust such a
body, with the regulation of their trade, with the regulation of their
taxes; with all the other great powers, which are in contemplation? Will
they give unbounded confidence to a secret Journal—to the intrigues—to
the
[pg 194]
factions which in the nature of things appertain to such an Assembly? If
any man doubts the existence of these characters of Congress, let him
consult their Journals for the years 78, 79, & 80.—It will be
said, that if the people are averse to parting with power, why is it hoped
that they will part with it to a National Legislature. The proper answer
is that in this case they do not part with power: they only transfer it
from one sett of immediate Representatives to another sett.—Much has
been said of the unsettled state of the mind of the people, he believed
the mind of the people of America, as elsewhere, was unsettled as to some
points; but settled as to others. In two points he was sure it was well
settled. 1. in an attachment to Republican Government. 2. in an attachment
to more than one branch in the Legislature. Their constitutions accord so
generally in both these circumstances, that they seem almost to have been
preconcerted. This must either have been a miracle, or have resulted from
the genius of the people. The only exceptions to the establishm
of two branches in the Legislatures are the State of P
Cong
and the latter the only single one not chosen by the
people themselves. What has been the consequence? The people have been
constantly averse to giving that Body further powers—It was
acknowledged by (M
Patterson) that his plan could not be
enforced without military coercion. Does he consider the force of this
concession. The most jarring elements of Nature; fire & water
themselves are not more incompatible that[n] such a mixture of civil
liberty and military execution. Will the militia march from one State to
another, in order to collect the arrears of taxes from the delinquent
members of the Republic? Will they maintain an army for this purpose? Will
not the Citizens of the invaded State assist one another till they rise as
one Man, and shake off the Union altogether.
[pg 195]
Rebellion is the only
case, in which the military force of the State can be properly exerted ag
st
its Citizens. In one point of view he was struck with horror at the
prospect of recurring to this expedient. To punish the non-payment of
taxes with death, was a severity not yet adopted by despotism itself: yet
this unexampled cruelty would be mercy compared to a military collection
of revenue, in which the bayonet could make no discrimination between the
innocent and the guilty. He took this occasion to repeat, that
notwithstanding his solicitude to establish a national Government, he
never would agree to abolish the State Gov
ts
or render them
absolutely insignificant. They were as necessary as the Gen
Gov
and he would be equally careful to preserve them. He was
aware of the difficulty of drawing the line between them, but hoped it was
not insurmountable. The Convention, tho' comprising so many
distinguished characters, could not be expected to make a faultless Gov
And he would prefer trusting to Posterity the amendment of its defects,
rather than to push the experiment too far.
Luther Martin agreed with (Col Mason) as to the importance
of the State Gov
ts
he would support them at the expence of the
Gen
Gov
which was instituted for the purpose of
that support. He saw no necessity for two branches, and if it existed
Congress might be organized into two. He considered Cong
as
representing the people, being chosen by the Legislatures who were chosen
by the people. At any rate, Congress represented the Legislatures; and it
was the Legislatures not the people who refused to enlarge their powers.
Nor could the rule of voting have been the ground of objection, otherwise
ten of the States must always have been ready, to place further confidence
in Cong
. The causes of repugnance must therefore be looked for
elsewhere.—At
[pg 196]
the separation from the British Empire, the people of America preferred
the establishment of themselves into thirteen separate sovereignties
instead of incorporating themselves into one: to these they look up for
the security of their lives, liberties & properties: to these they
must look up. The federal Gov
they formed, to defend the whole
ag
st
foreign nations, in case of war, and to defend the lesser
States ag
st
the ambition of the larger: they are afraid of
granting power unnecessarily, lest they should defeat the original end of
the Union; lest the powers should prove dangerous to the sovereignties of
the particular States which the Union was meant to support; and expose the
lesser to being swallowed up by the larger. He conceived also that the
people of the States having already vested their powers in their
respective Legislatures, could not resume them without a dissolution of
their Governments. He was ag
st
Conventions in the States: was
not ag
st
assisting States ag
st
rebellious subjects;
thought the
federal
plan of M
Patterson did not require
coercion more than the
National one
, as the latter must depend for
the deficiency of its revenues on requisitions & quotas, and that a
national Judiciary extended into the States would be ineffectual, and
would be viewed with a jealousy inconsistent with its usefulness.
Sherman 2
ded
& supported M
Lansings motion. He admitted two branches to be necessary in the State
Legislatures, but saw no necessity for them in a Confederacy of States.
The examples were all, of a single Council. Cong
carried us
thro' the war, and perhaps as well as any Gov
could have
done. The complaints at present are not that the views of Cong
are unwise or unfaithful; but that their powers are insufficient for the
execution of their views. The national debt & the want of power
somewhere to draw forth the National resources,
[pg 197]
are the great matters
that press. All the States were sensible of the defect of power in Cong
He thought much might be said in apology for the failure of the State
Legislatures to comply with the Confederation. They were afraid of leaning
too hard on the people, by accumulating taxes; no
constitutional
rule had been or could be observed in the quotas—the Accounts also
were unsettled & every State supposed itself in advance, rather than
in arrears. For want of a general system, taxes to a due amount had not
been drawn from trade which was the most convenient resource. As almost
all the States had agreed to the recommendation of Cong
on the
subject of an impost, it appeared clearly that they were willing to trust
Cong
with power to draw a revenue from Trade. There is no
weight therefore in the argument drawn from a distrust of Cong
for money matters being the most important of all, if the people will
trust them with power as to them, they will trust them with any other
necessary powers. Cong
indeed by the confederation have in
fact the right of saying how much the people shall pay, and to what
purpose it shall be applied: and this right was granted to them in the
expectation that it would in all cases have its effect. If another branch
were to be added to Cong
to be chosen by the people, it would
serve to embarrass. The people would not much interest themselves in the
elections, a few designing men in the large districts would carry their
points, and the people would have no more confidence in their new
representatives than in Cong
. He saw no reason why the State
Legislatures should be unfriendly as had been suggested, to Cong
If they appoint Cong
and approve of their measures, they would
be rather favourable and partial to them. The disparity of the States in
point of size he perceived was the main difficulty. But the large States
had not yet
[pg 198]
suffered from the equality of votes enjoyed by the small ones. In all
great and general points, the interests of all the States were the same.
The State of Virg
notwithstanding the equality of votes,
ratified the Confederation without, or even proposing, any alteration.
Mass
ts
also ratified without any material difficulty &c. In
none of the ratifications is the want of two branches noticed or
complained of. To consolidate the States as some had proposed would
dissolve our Treaties with foreign Nations, which had been formed with us,
as
Confederated
States. He did not however suppose that the
creation of two branches in the Legislature would have such an effect. If
the difficulty on the subject of representation can not be otherwise got
over, he would agree to have two branches, and a proportional
representation in one of them, provided each State had an equal voice in
the other. This was necessary to secure the rights of the lesser States;
otherwise three or four of the large States would rule the others as they
please. Each State like each individual had its peculiar habits usages and
manners, which constituted its happiness. It would not therefore give to
others a power over this happiness, any more than an individual would do,
when he could avoid it.
Wilson. urged the necessity of two branches; observed that
if a proper model were not to be found in other Confederacies it was not
to be wondered at. The number of them was small & the duration of some
at least short. The Amphyctionic and Achæan were formed in the infancy of
political Science; and appear by their History & fate, to have
contained radical defects. The Swiss & Belgic Confederacies were held
together not by any vital principle of energy but by the incumbent
pressure of formidable neighbouring nations: The German owed its
continuance to the influence of the H. of Austria. He
[pg 199]
appealed to our own
experience for the defects of our Confederacy. He had been 6 years in the
12 since the commencement of the Revolution, a member of Congress, and had
felt all its weaknesses. He appealed to the recollection of others whether
on many important occasions, the public interest had not been obstructed
by the small members of the Union. The success of the Revolution was owing
to other causes, than the Constitution of Congress. In many instances it
went on even ag
st
the difficulties arising from Cong
themselves. He admitted that the large States did accede as had been
stated, to the Confederation in its present form. But it was the effect of
necessity not of choice. There are other instances of their yielding from
the same motive to the unreasonable measures of the small States. The
situation of things is now a little altered. He insisted that a jealousy
would exist between the State Legislatures & the General Legislature:
observing that the members of the former would have views & feelings
very distinct in this respect from their constituents. A private Citizen
of a State is indifferent whether power be exercised by the Gen
or State Legislatures, provided it be exercised most for his happiness.
His representative has an interest in its being exercised by the body to
which he belongs. He will therefore view the National Legisl: with the eye
of a jealous rival. He observed that the addresses of Cong
to
the people at large, had always been better received & produced
greater effect, than those made to the Legislatures.
On the question for postponing in order to take up M
Lansing's
proposition "to vest the powers of legislation in Cong
Mass
ts
no. Con
ay. N. Y. ay.
N. J. ay. P
no. Del. ay. M
div
no. N. C. no. S. C. no. Geo. no.
On motion of the Deputies from Delaware, the
[pg 200]
question on the 2
Resolution in the Report from the Committee of the whole was postponed
till tomorrow.
Adj
Thursday June 21. in Convention.
Jonathan Dayton from N. Jersey took his seat.
[94]
[94]
From June
21 to July 18 inclusive not copied by M
Eppes.—Madison's
Note. This applies evidently to notes he permitted Hon. George W.
Eppes, Jefferson's son-in-law, to take.
Doc
Johnson.
[95]
On a comparison of the
two plans which had been proposed from Virginia & N. Jersey, it
appeared that the peculiarity which characterized the latter was its being
calculated to preserve the individuality of the States. The plan from V
did not profess to destroy this individuality altogether, but was charged
with such a tendency. One Gentleman alone (Col. Hamilton) in his
animadversions on the plan of N. Jersey, boldly and decisively
contended for an abolition of the State Gov
ts
. M
Wilson & the gentleman from Virg
who also were adversaries
of the plan of N. Jersey held a different language. They wished to
leave the States in possession of a considerable, tho' a subordinate
jurisdiction. They had not yet however shewn how this c
consist with, or be secured ag
st
the general sovereignty &
jurisdiction, which they proposed to give to the National Government. If
this could be shewn in such a manner as to satisfy the patrons of the N.
[pg 201]
Jersey propositions, that the individuality of the States would not be
endangered, many of their objections would no doubt be removed. If this
could not be shewn their objections would have their full force. He wished
it therefore to be well considered whether in case the States, as was
proposed, sh
retain some portion of sovereignty at least, this
portion could be preserved, without allowing them to participate
effectually in the Gen
Gov
, without giving them
each a distinct and equal vote for the purpose of defending themselves in
the general Councils.
[95]
"D
Johnson is a character much celebrated for his legal knowledge; he is
said to be one of the first classics in America, and certainly
possesses a very strong and enlightened understanding.
"As an Orator in my opinion, there is nothing in him that warrants the
high reputation which he has for public speaking. There is something
in the tone of his voice not pleasing to the Ear,—but he is
eloquent and clear,—always abounding with information and
instruction. He was once employed as an Agent for the State of
Connecticut to state her claims to certain landed territory before the
British House of Commons; this Office he discharged with so much
dignity, and made such an ingenious display of his powers, that he
laid the foundation of a reputation which will probably last much
longer than his own life. D
Johnson is about sixty years
of age, possesses the manners of a Gentleman, and engages the Hearts
of Men by the sweetness of his temper, and that affectionate style of
address with which he accosts his acquaintance."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 326.
Wilson's respect for Doc
Johnson, added to
the importance of the subject led him to attempt, unprepared as he was, to
solve the difficulty which had been started. It was asked how the Gen
Gov
and individuality of the particular States could be
reconciled to each other; and how the latter could be secured ag
st
the former? Might it not, on the other side be asked how the former was to
be secured ag
st
the latter? It was generally admitted that a
jealousy & rivalship would be felt between the Gen
particular Gov
ts
. As the plan now stood, tho' indeed
contrary to his opinion, one branch of the Gen
Gov
(the Senate or second branch) was to be appointed by the State
Legislatures. The State Legislatures, therefore, by this participation in
the Gen
Gov
would have an opportunity of defending
their rights. Ought not a reciprocal opportunity to be given to the Gen
Gov
of defending itself by having an appointment of some one
constituent branch of the State Gov
ts
. If a security be
necessary on one
[pg 202]
side, it w
seem reasonable to demand it on the other. But
taking the matter in a more general view, he saw no danger to the States
from the Gen
Gov
. In case a combination should be
made by the large ones it w
produce a general alarm among the
rest; and the project w
be frustrated. But there was no
temptation to such a project. The States having in general a similar
interest, in case of any propositions in the National Legislature to
encroach on the State Legislatures, he conceived a general alarm w
take place in the National Legislature itself, that it would communicate
itself to the State Legislatures, and w
finally spread among
the people at large. The Gen
Gov
will be as ready
to preserve the rights of the States as the latter are to preserve the
rights of individuals; all the members of the former, having a common
interest, as representatives of all the people of the latter, to leave the
State Gov
ts
in possession of what the people wish them to
retain. He could not discover, therefore any danger whatever on the side
from which it was apprehended. On the contrary, he conceived that in spite
of every precaution the General Gov
would be in perpetual
danger of encroachments from the State Gov
ts
Madison was of opinion that there was 1. less danger of
encroachment from the Gen
Gov
than from the State
Gov
ts
2. that the mischief from encroachments would be less
fatal if made by the former, than if made by the latter. 1. All the
examples of other confederacies prove the greater tendency in such systems
to anarchy than to tyranny; to a disobedience of the members than
usurpations of the federal head. Our own experience had fully illustrated
this tendency.—But it will be said that the proposed change in the
principles & form of the Union will vary the tendency; that the Gen
Gov
will have real & greater powers, and will be derived
in one branch at least from the people,
[pg 203]
not from the Gov
ts
of the States. To give full force to this objection, let it be supposed
for a moment that indefinite power should be given to the Gen
Legislature, and the States reduced to Corporations dependent on the Gen
Legislature; Why sh
it follow that the Gen
Gov
take from the States any branch of their power as far as its
operation was beneficial, and its continuance desireable to the people? In
some of the States, particularly in Connecticut, all the Townships are
incorporated, and have a certain limited jurisdiction. Have the
Representatives of the people of the Townships in the Legislature of the
State ever endeavoured to despoil the Townships of any part of their local
authority? As far as this local authority is convenient to the people they
are attached to it; and their representatives chosen by & amenable to
them, naturally respect their attachment to this, as much as their
attachment to any other right or interest. The relation of a General Gov
to State Gov
ts
is parallel. 2. Guards were more necessary ag
st
encroachments of the State Gov
ts
on the Gen
Gov
than of the latter on the former. The great objection made ag
st
an abolition of the State Gov
ts
was that the Gen
Gov
could not extend its care to all the minute objects which
fall under the cognizance of the local jurisdictions. The objection as
stated lay not ag
st
the probable abuse of the general power,
but ag
st
the imperfect use that could be made of it throughout
so great an extent of country, and over so great a variety of objects. As
far as its operation would be practicable it could not in this view be
improper; as far as it would be impracticable, the conveniency of the Gen
Gov
itself would concur with that of the people in the
maintenance of subordinate Governments. Were it practicable for the Gen
Gov
to extend its care to every requisite object without the
cooperation of the State Gov
ts
the people would not
[pg 204]
be
less free as members of one great Republic than as members of thirteen
small ones. A Citizen of Delaware was not more free than a Citizen of
Virginia: nor would either be more free than a Citizen of America.
Supposing therefore a tendency in the Gen
Government to absorb
the State Gov
ts
no fatal consequence could result. Taking the
reverse as the supposition, that a tendency should be left in the State
Gov
ts
towards an independence on the General Gov
and the gloomy consequences need not be pointed out. The imagination of
them, must have suggested to the States the experiment we are now making
to prevent the calamity, and must have formed the chief motive with those
present to undertake the arduous task.
On the question for resolving "that the Legislature ought to consist of
two Branches"
Mass. ay. Con
ay. N. Y. no. N. Jersey,
no. P
ay. Del. no. M
div
ay. N. C. ay. S. C. ay. Geo. ay.
The
third
resolution of the Report taken into consideration.
Gen
Pinkney moved "that the 1
st
branch, instead of
being elected by the people, sh
be elected in such manner as
the Legislature of each State should direct." He urged 1. that this
liberty would give more satisfaction, as the Legislatures could then
accommodate the mode to the conveniency & opinions of the people. 2.
that it would avoid the undue influence of large Counties which would
prevail if the elections were to be made in districts as must be the mode
intended by the Report of the Committee. 3. that otherwise disputed
elections must be referred to the General Legislature which would be
attended with intolerable expence and trouble to the distant parts of the
Republic.
L. Martin seconded the Motion.
[96]
[96]
After
Martin's second, according to Yates:
"M
Madison. I oppose the motion—there are no
difficulties, but they may be obviated in the details connected with
the subject."—Yates,
Secret Proceedings
, etc., 149.
[pg 205]
Col. Hamilton considered the Motion as intended manifestly to transfer the
election from the people to the State Legislatures, which would
essentially vitiate the plan. It would increase that State influence which
could not be too watchfully guarded ag
st
. All too must admit
the possibility, in case the Gen
Gov
sh
maintain itself, that the State Gov
ts
might gradually dwindle
into nothing. The system therefore sh
not be engrafted on what
might possibly fail.
Mason urged the necessity of retaining the election by the
people. Whatever inconveniency may attend the democratic principle, it
must actuate one part of the Gov
. It is the only security for
the rights of the people.
Sherman, would like an election by the Legislatures best,
but is content with the plan as it stands.
Rutlidge could not admit the solidity of the distinction
between a mediate & immediate election by the people. It was the same
thing to act by oneself, and to act by another. An election by the
Legislature would be more refined than an election immediately by the
people: and would be more likely to correspond with the sense of the whole
community. If this Convention had been chosen by the people in districts
it is not to be supposed that such proper characters would have been
preferred. The Delegates to Cong
he thought had also been
fitter men than would have been appointed by the people at large.
Wilson considered the election of the 1
st
branch
by the people not only as the Corner Stone, but as the foundation of the
fabric: and that the difference between a mediate & immediate election
was immense. The difference was particularly worthy of notice in this
respect: that the Legislatures are
[pg 206]
actuated not merely by the sentiment
of the people; but have an official sentiment opposed to that of the Gen
Gov
and perhaps to that of the people themselves.
King enlarged on the same distinction. He supposed the
Legislatures w
constantly choose men subservient to their own
views as contrasted to the general interest; and that they might even
devise modes of election that w
be subversive of the end in
view. He remarked several instances in which the views of a State might be
at variance with those of the Gen
Gov
: and
mentioned particularly a competition between the National & State
debts, for the most certain & productive funds.
Gen
Pinkney was for making the State Gov
ts
a part
of the General System. If they were to be abolished, or lose their agency,
S. Carolina & other States would have but a small share of the
benefits of Gov
On the question for Gen
Pinkney motion to substitute election
of the 1
st
branch in such mode as the Legislatures should
appoint, in stead of its being elected by the people"
Mass
ts
no. Con
ay. N. Y. no.
N. J. ay. P
no. Del. ay. M
div
no. N. C. no. S. C. ay. Geo. no.
General Pinkney then moved that the 1
st
branch be elected
by
the people
in such mode as the Legislatures should direct; but waived
it on its being hinted that such a provision might be more properly tried
in the detail of the plan.
On the question for y
election of the 1
st
branch by
the
people
Mass
ts
ay. Con
ay. N. Y. ay.
N. J. no. P
ay. Del. ay. M
div
ay. N. C. ay. S. C. ay. Geo. ay.
Election of the 1
st
branch "for the term of three years,"
considered.
[pg 207]
Randolph moved to strike out, "three years" and insert "two
years"—he was sensible that annual elections were a source of great
mischiefs in the States, yet it was the want of such checks ag
st
the popular intemperence as were now proposed, that rendered them so
mischievous. He would have preferred annual to biennial, but for the
extent of the U. S. and the inconveniency which would result from
them to the representatives of the extreme parts of the Empire. The people
were attached to frequency of elections. All the Constitutions of the
States except that of S. Carolina, had established annual elections.
Dickinson. The idea of annual elections was borrowed from
the antient Usage of England, a country much less extensive than ours. He
supposed biennial would be inconvenient. He preferred triennial, and in
order to prevent the inconveniency of an entire change of the whole number
at the same moment, suggested a rotation, by an annual election of one
third.
Elseworth was opposed to three years, supposing that even
one year was preferable to two years. The people were fond of frequent
elections and might be safely indulged in one branch of the Legislature.
He moved for 1 year.
Strong
[97]
seconded & supported
the motion.
[97]
"M
Strong is a Lawyer of some eminence,—he has received a liberal
education, and has good connections to recommend him. As a speaker he
is feeble, and without confidence. This Gent
is about
thirty five years of age, and greatly in the esteem of his
Colleagues."—Pierce's Notes,
Amer. Hist. Rev.
iii.,
326.
Wilson being for making the 1
st
branch an
effectual representation of the people at large, preferred an annual
election of it. This frequency was most familiar & pleasing to the
people. It would not be more inconvenient to them, than triennial
elections, as the people in all the States have annual
[pg 208]
meetings with which the election of the National representatives might be
made to co-incide. He did not conceive that it would be necessary for the
Nat
Leigsl: to sit constantly; perhaps not half—perhaps
not one fourth of the year.
Madison was persuaded that annual elections would be
extremely inconvenient and apprehensive that biennial would be too much
so; he did not mean inconvenient to the electors; but to the
representatives. They would have to travel seven or eight hundred miles
from the distant parts of the Union; and would probably not be allowed
even a reimbursement of their expences. Besides, none of those who wished
to be re-elected would remain at the seat of Governm
confiding that their absence would not affect them. The members of Cong
had done this with few instances of disappointment. But as the choice was
here to be made by the people themselves who would be much less
complaisant to individuals, and much more susceptible of impressions from
the presence of a Rival candidate, it must be supposed that the members
from the most distant States would travel backwards & forwards at
least as often as the elections should be repeated. Much was to be said
also on the time requisite for new Members who would always form a large
proportion, to acquire that knowledge of the affairs of the States in
general without which their trust could not be usefully discharged.
Sherman preferred annual elections, but would be content
with biennial. He thought the Representatives ought to return home and mix
with the people. By remaining at the seat of Gov
they would
acquire the habits of the place which might differ from those of their
Constituents.
Col. Mason observed that the States being differently situated such a rule
ought to be formed as would put them as nearly as possible on a level. If
[pg 209]
elections were annual the middle States would have a great advantage over
the extreme ones. He wished them to be biennial; and the rather as in that
case they would coincide with the periodical elections of S. Carolina
as well of the other States.
Col. Hamilton urged the necessity of 3 years, there ought to be neither
too much nor too little dependence, on the popular sentiments. The checks
in the other branches of the Govern
would be but feeble, and
would need every auxiliary principle that could be interwoven. The British
House of Commons were elected septennially, yet the democratic spirit of y
Constitution had not ceased. Frequency of elections tended to make the
people listless to them; and to facilitate the success of little cabals.
This evil was complained of in all the States. In Virg
it had
been lately found necessary to force the attendance & voting of the
people by severe regulations.
On the question for striking out "three years"
Mass
ts
ay. Con
ay. N. Y. no.
N. J. div
. P
ay. Del. no. M
no.
ay. N. C. ay. S. C. ay. Geo. ay.
The motion for "two years" was then inserted nem. con.
Adj
Friday June 22. in Convention
The clause in Resol. 3 "to receive fixed stipends to be paid out of the
Nation
Treasury" considered.
Elseworth, moved to substitute payment by the States out of
their own Treasurys: observing that the manners of different States were
very different in the stile of living and in the profits accruing from the
exercise of like talents. What would be deemed therefore a reasonable
compensation in some States, in others would be very unpopular, and might
impede the system of which it made a part.
[pg 210]
Williamson favored the idea. He reminded the House of the
prospect of new States to the Westward. They would be too poor—would
pay little into the common Treasury—and would have a different
interest from the old States. He did not think therefore that the latter
ought to pay the expences of men who would be employed in thwarting their
measures & interests.
Ghorum
[98]
wished not to refer the
matter to the State Legislatures who were always paring down salaries in
such a manner as to keep out of offices men most capable of executing the
functions of them. He thought also it would be wrong to fix the
compensations by the constitution, because we could not venture to make it
as liberal as it ought to be without exciting an enmity ag
st
the whole plan. Let the Nat
Legisl: provide for their own
wages from time to time; as the State Legislatures do. He had not seen
this part of their power abused, nor did he apprehend an abuse of it.
[98]
"M
Gorham is a merchant in Boston, high in reputation, and much in the
esteem of his country-men. He is a man of very good sense, but not
much improved in his education. He is eloquent and easy in public
debate, but has nothing fashionable or elegant in his style;—all
he aims at is to convince, and where he fails it never is from his
auditory not understanding him, for no man is more perspicuous and
full. He has been President of Congress, and three years a Member of
that Body. M
Gorham is about 46 years of age, rather
lusty, and has an agreeable and pleasing manner."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 325.
Randolph said he feared we were going too far, in consulting
popular prejudices. Whatever respect might be due to them, in lesser
matters, or in cases where they formed the permanent character of the
people, he thought it neither incumbent on nor honorable for the
Convention, to sacrifice right & justice to that consideration. If the
States were to pay the members of the Nat
Legislature, a
dependence would be created that would vitiate the
[pg 211]
whole System. The
whole nation has an interest in the attendance & services of the
members. The Nation
Treasury therefore is the proper fund for
supporting them.
King, urged the danger of creating a dependence on the
States by leav
to them the payment of the members of the Nat
Legislature. He supposed it w
be best to be explicit as to the
compensation to be allowed. A reserve on that point, or a reference to the
Nat
Legislature of the quantum, would excite greater
opposition than any sum that would be actually necessary or proper.
Sherman contended for referring both the quantum and the
payment of it to the State Legislatures.
Wilson was ag
st
fixing
the compensation as
circumstances would change and call for a change of the amount. He thought
it of great moment that the members of the Nat
Gov
should be left as independent as possible of the State Gov
ts
in
all respects.
Madison concurred in the necessity of preserving the
compensations for the Nat
Gov
independent on the
State Gov
ts
but at the same time approved of
fixing
them
by the Constitution, which might be done by taking a standard which w
not vary with circumstances. He disliked particularly the policy suggested
by M
Williamson of leaving the members from the poor States
beyond the Mountains, to the precarious & parsimonious support of
their constituents. If the Western States hereafter arising should be
admitted into the Union, they ought to be considered as equals & as
brethren. If their representatives were to be associated in the Common
Councils, it was of common concern that such provisions should be made as
would invite the most capable and respectable characters into the service.
Hamilton apprehended inconveniency from
fixing
the
wages. He was strenuous ag
st
making the
[pg 212]
National Council
dependent on the Legislative rewards of the States. Those who pay are the
masters of those who are paid. Payment by the States would be unequal as
the distant States would have to pay for the same term of attendance and
more days in travelling to & from the seat of the Gov
. He
expatiated emphatically on the difference between the feelings & views
of the
people
—& the
Governments
of the States
arising from the personal interest & official inducements which must
render the latter unfriendly to the Gen
Gov
Wilson moved that the Salaries of the 1
st
branch
be ascertained by the National Legislature
," and be paid out of
the Nat
Treasury.
Madison, thought the members of the Legis
too
much interested to ascertain their own compensation. It w
be
indecent to put their hands into the public purse for the sake of their
own pockets.
On this question Mass. no. Con
no. N. Y. div
N. J. ay. P
ay. Del. no. M
no.
no. N. C. no. S. C. no. Geo. div
On the question for striking out "Nat
Treasury" as moved by M
Elseworth.
Hamilton renewed his opposition to it. He pressed the
distinction between the State Gov
ts
& the people. The
former w
be the rivals of the Gen
Gov
The State legislatures ought not therefore to be the paymasters of the
latter.
Elseworth. If we are jealous of the State Gov
ts
they will be so of us. If on going home I tell them we gave the Gen: Gov
such powers because we c
not trust you. Will they adopt it,
and with
approbation it is a nullity.
[99]
[99]
According
to Yates, Wilson followed Ellsworth:
"Mr. Wilson. I am not for submitting the national government to the
approbation of the state legislatures. I know that they and the
state officers will oppose it. I am for carrying it to the people of
each state."—Yates,
Secret Proceedings
, etc., 153.
[pg 213]
Mass
ts
ay. Con
ay. N. Y. div
N. J. no. Pen
no. Del. no. M
no.
no. N. C. ay. S. C. ay. Geo. div
[100]
[100]
(It
appeared that Mass
ts
concurred, not because they thought
the State Treas
ought to be substituted; but because they
thought nothing should be said on the subject, in which case it w
silently devolve on the Nat
Treasury to support the
National Legislature.)—Madison's Note.
On a question for substituting "adequate compensation" in place of "fixt
stipends" it was agreed to nem. con. the friends of the latter being
willing that the practicability of
fixing
the compensation should
be considered hereafter in forming the details.
It was then moved by M
Butler that a question be taken on both
points jointly; to wit "adequate compensation to be paid out of the Nat
Treasury." It was objected to as out of order, the parts having been
separately decided on. The Presid
refer
the
question of order to the House, and it was determined to be in order. Con.
N. J. Del. M
N. C. S. C.—ay.—N. Y.
Geo. no.—Mass. divided. The
question on the sentence was then postponed by S. Carolina in right
of the State.
Col. Mason moved to insert "twenty-five years of age as a qualification
for the members of the 1
st
branch." He thought it absurd that a
man today should not be permitted by the law to make a bargain for
himself, and tomorrow should be authorized to manage the affairs of a
great nation. It was more extraordinary as every man carried with him in
his own experience a scale for measuring the deficiency of young
politicians; since he would if interrogated be obliged to declare that his
political opinions at the age of 21. were too crude & erroneous to
merit an influence on public measures. It had been said that Cong
had proved a good school for our young men. It might be so for any thing
he knew but if it were,
[pg 214]
he chose that they should bear the
expence of their own education.
Wilson was ag
st
abridging the rights of election
in any shape. It was the same thing whether this were done by
disqualifying the objects of choice, or the persons chusing. The motion
tended to damp the efforts of genius, and of laudable ambition. There was
no more reason for incapacitating
youth
than
age
, where the
requisite qualifications were found. Many instances might be mentioned of
signal services rendered in high stations to the public before the age of
25: The present M
Pitt and Lord Bolingbroke were striking
instances.
On the question for inserting "25 years of age"
Mass
ts
no. Con
ay. N. Y. div
N. J. ay. P
no. Del. ay. M
ay.
ay. N. C. ay. S. C. ay. Geo. no.
Ghorum moved to strike out the last member of the 3 Resol:
concerning ineligibility of members of the 1
st
branch to office
during the term of their membership & for one year after. He
considered it as unnecessary & injurious. It was true abuses had been
displayed in G. B. but no one c
say how far they might have
contributed to preserve the due influence of the Gov
nor what
might have ensued in case the contrary theory had been tried.
Butler opposed it. This precaution ag
st
intrigue
was necessary. He appealed to the example of G. B. where men got into Parl
that they might get offices for themselves or their friends. This was the
source of the corruption that ruined their Gov
King, thought we were refining too much. Such a restriction
on the members would discourage merit. It would also give a pretext to the
Executive for bad appointments, as he might always plead this as a bar to
the choice he wished to have made.
Wilson was ag
st
fettering elections, and
discouraging merit. He suggested also the fatal consequence in time of
war, of rendering perhaps the best
[pg 215]
Commanders ineligible; appealing to
our situation during the late war, and indirectly leading to a
recollection of the appointment of the Com̃ander in Chief out of
Congress.
[101]
[101]
According to Yates, Madison followed Wilson:
"Mr. Madison. Some gentlemen give too much weight and others too
little to this subject. If you have no exclusive clause, there may
be danger of creating offices or augmenting the stipends of those
already created, in order to gratify some members if they were not
excluded. Such an instance has fallen within my own observation. I
am therefore of opinion, that no office ought to be open to a
member, which may be created or augmented while he is in the
legislature."—Yates,
Secret Proceedings
, etc., 155.
Yates gives the rest of the debate as follows:
"Mr. Mason. It seems as if it was taken for granted, that all
offices will be filled by the executive, while I think many will
remain in the gift of the legislature. In either case, it is
necessary to shut the door against corruption. If otherwise, they
may make or multiply offices, in order to fill them. Are gentlemen
in earnest when they suppose that this exclusion will prevent the
first characters from coming forward? Are we not struck at seeing
the luxury and venality which has already crept in among us? If
not checked we shall have ambassadors to every petty state in
Europe—the little republic of
St. Marino
not
excepted. We must in the present system remove the temptation. I
admire many parts of the British constitution and government, but
I detest their corruption.—Why has the power of the crown so
remarkably increased the last century? A stranger, by reading
their laws, would suppose it considerably diminished; and yet, by
the sole power of appointing the increased officers of government,
corruption pervades every town and village in the kingdom. If such
a restriction should abridge the right of election, it is still
necessary, as it will prevent the people from ruining themselves;
and will not the same causes here produce the same effects? I
consider this clause as the corner-stone on which our liberties
depend—and if we strike it out we are erecting a fabric for
our destruction.
"Mr. Gorham. The corruption of the English government cannot be
applied to America. This evil exists there in the venality of
their boroughs; but even this corruption has its advantage, as it
gives stability to their government. We do not know what the
effect would be if members of parliament were excluded from
offices. The great bulwark of our liberty is the frequency of
elections, and the great danger is the septennial parliaments.
"Mr. Hamilton. In all general questions which become the subjects
of discussion, there are always some truths mixed with falsehoods.
I confess there is danger where men are capable of holding two
offices. Take mankind in general, they are vicious—their
passions may be operated upon. We have been taught to reprobate
the danger of influence in the British government, without duly
reflecting how far it was necessary to support a good government.
We have taken up many ideas on trust, and at last, pleased with
their own opinions, establish them as undoubted truths. Hume's
opinion of the British constitution confirms the remark, that
there is always a body of firm patriots, who often shake a corrupt
administration. Take mankind as they are, and what are they
governed by? Their passions. There may be in every government a
few choice spirits, who may act from more worthy motives. One
great error is that we suppose mankind more honest than they are.
Our prevailing passions are ambition and interest; and it will
ever be the duty of a wise government to avail itself of those
passions, in order to make them subservient to the public good—for
these ever induce us to action. Perhaps a few men in a state, may,
from patriotic motives, or to display their talents, or to reap
the advantage of public applause, step forward; but if we adopt
the clause, we destroy the motive. I am therefore against all
exclusions and refinements, except only in this case; that when a
member takes his seat, he should vacate every other office. It is
difficult to put any exclusive regulation into effect. We must in
some degree submit to the inconvenience."—Yates,
Secret
Proceedings
, etc., 155, 156.
Col. Mason was for shutting the door at all events ag
st
corruption. He enlarged on the venality and abuses in this particular in
G. Britain: and alluded to the multiplicity of foreign Embassies by Cong
The disqualification he regarded as a corner stone in the fabric.
Col. Hamilton, there are inconveniences on both sides. We must take man as
we find him, and if we expect him to serve the public must interest his
passions
[pg 216]
in doing so. A reliance on pure patriotism had been the source of many of
our errors. He thought the remark of M
Ghorum a just one. It
was impossible to say what w
be the effect in G. B. of such a
reform as had been urged. It was known that one of the ablest politicians
(M
Hume) had pronounced all that influence on the side of the
crown, which went under the name of corruption, an essential part
[pg 217]
of
the weight which maintained the equilibrium of the Constitution.
On M
Ghorum's Motion for striking out "ineligibility,"
Mass
ts
ay. Con
no. N. Y. div
N. J. ay. P
div
. Del. div
Mar
no. V
no. N. C. ay. S. C.
no. G
ay.
Adj
Saturday June 23. in Convention
The 3
Resol: resumed.
On Question yesterday postponed by S. Carol: for agreeing to the
whole sentence "for allowing an adequate compensation to be paid out of
the
Treasury of the U. States
Mass
ts
ay. Con
no. N. Y. no.
N. J. ay. Pen
ay. Del. no. M
ay.
ay. N. C. no. S. C. no. Geo.
divided. So the question was lost, & the sentence not inserted:
Gen
Pinkney moves to strike out the ineligibility of members
of the 1
st
branch to offices established "by a particular
State." He argued from the inconveniency to which such a restriction would
expose both the members of the 1
st
branch, and the States
wishing for their services; & from the smallness of the object to be
attained by the restriction.
It w
seem from the ideas of some that we are erecting a
Kingdom to be divided ag
st
itself,
[102]
he disapproved such a fetter on the Legislature.
[102]
According to Yates Wilson followed Pinckney:
"Mr. Wilson. I perceive that some gentlemen are of opinion to give a
bias in favor of state governments. This question ought to stand on
the same footing."—Yates,
Secret Proceedings
, etc.,
157.
Sherman seconds the motion. It w
seem that we
are erecting a Kingdom at war with itself. The Legislature ought not to
[be] fettered in such a case. On the question
Mass
ts
no. Con
ay. N. Y. ay.
N. J. ay. P
no.
[pg 218]
div
Del. no. M
ay. V
ay. N. C. ay.
S. C. ay. Geo. ay.
Madison renewed his motion yesterday made & waved to
render the members of the 1
st
branch "ineligible during their
term of service, & for one year after—to such offices only as
should be established, or the emoluments thereof augmented, by the
Legislature of the U. States during the time of their being members." He
supposed that the unnecessary creation of offices, and increase of
salaries, were the evils most experienced, & that if the door was shut
ag
st
them: it might properly be left open for the appoint
of members to other offices as an encouragem
to the
Legislative service.
Alex: Martin
[103]
seconded the Motion.
[103]
"Mr.
Martin was lately Governor of North Carolina, which office he filled
with credit. He is a man of sense, and undoubtedly is a good
politician, but he is not formed to shine in public debate, being no
speaker. Mr. Martin was once a Colonel in the American Army, but
proved unfit for the field. He is about 40 years of age."—Pierce's
Notes,
Am. Hist. Rev.
, iii., 332.
Butler. The amend
does not go far eno. & w
be easily evaded.
Rutlidge, was for preserving the Legislature as pure as
possible, by shutting the door against appointments of its own members to
offices, which was one source of its corruption.
Mason.
[104]
The motion of my
colleague is but a partial remedy for the evil. He appealed to him as a
witness of the shameful partiality of the Legislature
[pg 219]
of Virginia to its
own members. He enlarged on the abuses & corruption in the British
Parliament, connected with the appointment of its members. He c
not suppose that a sufficient number of Citizens could not be found who
would be ready, without the inducement of eligibility to offices, to
undertake the Legislative service. Genius & virtue it may be said,
ought to be encouraged. Genius, for aught he knew, might, but that virtue
should be encouraged by such a species of venality, was an idea, that at
least had the merit of being new.
[104]
Yates
gives Mason's speech more fully and a speech by Madisonomitted
here:
"Mr. Mason. I differ from my colleague in his proposed amendment.
Let me state the practice in the state where we came from. There,
all officers are appointed by the legislature. Need I add, that many
of their appointments are most shameful. Nor will the check proposed
by this amendment be sufficient. It will soon cease to be any check
at all. It is asserted that it will be very difficult to find men
sufficiently qualified as legislators without the inducement of
emolument. I do believe that men of genius will be deterred unless
possessed of great virtues. We may well dispense with the first
characters when destitute of virtue—I should wish them never
to come forward—But if we do not provide against corruption,
our government will soon be at an end; nor would I wish to put a man
of virtue in the way of temptation. Evasions and caballing would
evade the amendment. Nor would the danger be less, if the executive
has the appointment of officers. The first three or four years we
might go on well enough; but what would be the case afterwards? I
will add, that such a government ought to be refused by the people—and
it will be refused.
"Mr. Madison. My wish is that the national legislature be as
uncorrupt as possible. I believe all public bodies are inclined,
from various motives, to support its members; but it is not always
done from the base motives of venality. Friendship, and a knowledge
of the abilities of those with whom they associate, may produce it.
If you bar the door against such attachments, you deprive the
government of its greatest strength and support. Can you always rely
on the patriotism of the members? If this be the only inducement,
you will find a great indifferency in filling your legislative body.
If we expect to call forth useful characters, we must hold out
allurements; nor can any great inconveniency arise from such
inducements. The legislative body must be the road to public honor;
and the advantage will be greater to adopt my motion, than any
possible inconvenience."—Yates,
Secret Proceedings
etc., 158.
King remarked that we were refining too much in this
business; and that the idea of preventing intrigue and solicitation of
offices was chimerical. You say that no member shall himself be eligible
to any office. Will this restrain him from availing
[pg 220]
himself of the same
means which would gain appointments for himself, to gain them for his son,
his brother, or any other object of his partiality. We were losing
therefore the advantages on one side, without avoiding the evils on the
other.
Wilson supported the motion. The proper cure he said for
corruption in the Legislature was to take from it the power of appointing
to offices. One branch of corruption would indeed remain, that of creating
unnecessary offices, or granting unnecessary salaries, and for that the
amendment would be a proper remedy. He animadverted on the impropriety of
stigmatizing with the name of venality the laudable ambition of rising
into the honorable offices of the Government; an ambition most likely to
be felt in the early & most incorrupt period of life, & which all
wise & free Gov
ts
had deemed it sound policy, to cherish,
not to check. The members of the Legislature have perhaps the hardest
& least profitable task of any who engage in the service of the state.
Ought this merit to be made a disqualification?
Sherman observed that the motion did not go far enough. It
might be evaded by the creation of a new office, the translation to it of
a person from another office, and the appointment of a member of the
Legislature to the latter. A new Embassy might be established to a new
Court, & an ambassador taken from another, in order to
create
vacancy for a favorite member. He admitted that inconveniences lay on both
sides. He hoped there w
be sufficient inducements to the
public service without resorting to the prospect of desirable offices, and
on the whole was rather ag
st
the motion of M
Madison.
Gerry thought there was great weight in the objection of M
Sherman. He added as another objection ag
st
admitting the
eligibility of members in any case that it would produce intrigues of
ambitious
[pg 221]
men for displacing proper officers, in order to create vacancies for
themselves.
[105]
In answer to M
King he observed that although members, if disqualified themselves might
still intrigue & cabal for their sons, brothers &c, yet as their
own interests would be dearer to them, than those of their nearest
connections, it might be expected they would go greater lengths to promote
it.
[105]
Yates
gives Gerry's remarks:
"This amendment is of great weight, and its consequences ought to be
well considered. At the beginning of the war, we possessed more than
Roman virtue. It appears to me it is now the reverse. We have more
land and stock-jobbers than any place on earth. It appears to me
that we have constantly endeavored to keep distinct the three great
branches of government; but if we agree to this motion, it must be
destroyed by admitting the legislators to share in the executive, or
to be too much influenced by the executive, in looking up to them
for offices."—Yates,
Secret Proceedings
, etc., 160.
Madison had been led to this motion as a middle ground
between an eligibility in all cases, and an absolute disqualification. He
admitted the probable abuses of an eligibility of the members, to offices
particularly within the gift of the Legislature. He had witnessed the
partiality of such bodies to their own members, as had been remarked of
the Virginia Assembly by his colleague (Col. Mason). He appealed however
to him, in turn to vouch another fact not less notorious in Virginia, that
the backwardness of the best citizens to engage in the Legislative service
gave but too great success to unfit characters. The question was not to be
viewed on one side only. The advantages & disadvantages on both ought
to be fairly compared. The objects to be aimed at were to fill all offices
with the fittest characters, & to draw the wisest & most worthy
citizens into the Legislative service. If on one hand, public bodies were
partial to their own members; on the other they were as apt to be misled
by taking characters on report, or the authority of patrons and
dependents.
[pg 222]
All who had been concerned in the appointment of strangers on those
recommendations must be sensible of this truth. Nor w
the
partialities of such Bodies be obviated by disqualifying their own
members. Candidates for office would hover round the seat of Gov
or be found among the residents there, and practise all the means of
counting the favor of the members. A great proportion of the appointments
made by the States were evidently brought about in this way. In the
General Gov
the evil must be still greater, the characters of
distant states, being much less known throughout the U. States than those
of the distant parts of the same State. The elections by Congress had
generally turned on men living at the seat of the fed
Gov
or in its neighbourhood.—As to the next object, the impulse to the
Legislative service, was evinced by experience to be in general too feeble
with those best qualified for it. This inconveniency w
also be
more felt in the Nat
Gov
than in the State Gov
ts
as the Sacrifices req
from the distant members, w
be much greater, and the pecuniary provisions, probably, more
disproportionate. It w
therefore be impolitic to add fresh
objections to the Legislative service by an absolute disqualification of
its members. The point in question was whether this would be an objection
with the most capable citizens. Arguing from experience he concluded that
it would. The Legislature of Virg
would probably have been
without many of its best members, if in that situation, they had been
ineligible to Cong
to the Gov
& other
honorable offices of the State.
Butler thought Characters fit for office w
never
be unknown.
Col. Mason. If the members of the Legislature are disqualified, still the
honors of the State will induce those who aspire to them to enter that
service, as the field in which they can best display & improve
[pg 223]
their talents, & lay the train for their subsequent advancement.
Jenifer remarked that in Maryland, the Senators chosen for
five years, c
hold no other office & that this
circumstance gained them the greatest confidence of the people.
On the question for agreeing to the motion of M
Madison,
Mass
ts
div
. C
ay. N. Y. no.
N. J. ay. P
no. Del. no. M
no.
no. N. C. no. S. C. no. Geo. no.
Sherman mov
to insert the words "and incapable
of holding" after the words "eligible to offices" w
ch
was
agreed to without opposition.
The word "established" & the words "Nat
Gov
were struck out of the Resolution 3
Spaight called for a division of the question, in
consequence of which it was so put, as that it turned in the first member
of it, "on the ineligibility of members
during the term for which they
were elected
"—whereon the States were,
Mass
ts
div
. C
ay. N. Y. ay.
N. J. ay. P
no. Del. ay. M
ay.
ay. N. C. ay. S. C. ay. Geo. no.
On the 2
member of the sentence extending ineligibility of
members to one year after the term for which they were elected Col. Mason
thought this essential to guard ag
st
evasions by resignations,
and stipulations for office to be filled at the expiration of the
legislative term. M
Gerry, had known such a case. M
Hamilton. Evasions c
not be prevented—as by proxies—by
friends holding for a year, & then opening the way &c. M
Rutlidge admitted the possibility of evasions, but was for contracting
them as possible.
Mass. no. C
no. N. Y. ay. N. J. no.
div
. Del. ay. Mar
ay.
no. N. C. no. S. C. ay. Geo. no.
Adj
[pg 224]
Monday, June 25. in Convention.
Resolution 4. being taken up.
Pinkney spoke as follows—
[106]
The efficacy of the System will depend on this article. In order to form a
right judgm
in the case, it will be proper to examine the
situation of this Country more accurately than it has yet been done. The
people of the U. States are perhaps the most singular of any we are
acquainted with. Among them there are fewer distinctions of fortune &
less of rank, than among the inhabitants of any other nation. Every
freeman has a right to the same protection & security; and a very
moderate share of property entitles them to the possession of all the
honors and privileges the Public can bestow: hence arises a greater
equality, than is to be found among the people of any other Country, and
an equality which is more likely to continue—I say this equality is
likely to continue, because in a new Country, possessing immense tracts of
uncultivated lands, where every temptation is offered to emigration &
where industry must be rewarded with competency, there will be few poor,
and few dependent—Every member of the Society almost, will enjoy an
equal power of arriving at the supreme offices & consequently of
directing the strength & sentiments of the whole Community. None will
be excluded by birth, & few by fortune, from voting for proper persons
to fill the offices of Government—the whole community will enjoy in
the fullest sense that kind of political liberty which consists in the
power the members of the State reserve to themselves, of arriving at the
Public offices, or at least, of having votes in the nomination of those
who fill them.
[106]
Pinckney furnished Madison with a copy of this speech which he
transcribed, but apparently not with the whole of it, as Madison's
note at the end indicates. The original Pinckney draft is among the
Madison papers, and shows Madison's copying to have been accurate.
[pg 225]
If this State of things is true & the prospect of its continuing
probable, it is perhaps not politic to endeavour too close an imitation of
a Government calculated for a people whose situation is, & whose views
ought to be extremely different.
Much has been said of the Constitution of G. Britain. I will confess that
I believe it to be the best Constitution in existence; but at the same
time I am confident it is one that will not or cannot be introduced into
this Country, for many centuries.—If it were proper to go here into
a historical dissertation on the British Constitution, it might easily be
shewn that the peculiar excellence, the distinguishing feature of that
Governm
cannot possibly be introduced into our System—that
its balance between the Crown & the people cannot be made a part of
our Constitution,—that we neither have nor can have the members to
compose it, nor the rights, privileges & properties of so distinct a
class of Citizens to guard,—that the materials for forming this
balance or check do not exist, nor is there a necessity for having so
permanent a part of our Legislative, until the Executive power is so
constituted as to have something fixed & dangerous in its principle—By
this I mean a sole, hereditary, though limited Executive.
That we cannot have a proper body for forming a Legislative balance
between the inordinate power of the Executive and the people, is evident
from a review of the accidents & circumstances which gave rise to the
peerage of Great Britain—I believe it is well ascertained that the
parts which compose the British Constitution arose immediately from the
forests of Germany; but the antiquity of the establishment of Nobility is
by no means clearly defined. Some authors are of opinion that the dignity
denoted by the titles of dux et comes, was derived from the old Roman to
the German Empire; while others are of the opinion that they existed among
the
[pg 226]
Germans long before the Romans were acquainted with them. The institution
however of Nobility is immemorial among the Nations who may properly be
termed the ancestors of Britain.—At the time they were summoned in
England to become a part of the National Council, the circumstances which
contributed to make them a Constituent part of that constitution, must be
well known to all gentlemen who have had industry & curiosity enough
to investigate the subject—The Nobles with their possessions &
dependents composed a body permanent in their nature and formidable in
point of power. They had a distinct interest both from the King and the
people; an interest which could only be represented by themselves, and the
guardianship could not be safely intrusted to others.—At the time
they were originally called to form a part of the National Council,
necessity perhaps as much as other cause, induced the Monarch to look up
to them. It was necessary to demand the aid of his subjects in personal
& pecuniary services. The power and possessions of the Nobility would
not permit taxation from any Assembly of which they were not a part: &
the blending the Deputies of the Commons with them, & thus forming
what they called their parlerment was perhaps as much the effect of chance
as of any thing else. The Commons were at that time compleatly subordinate
to the nobles, whose consequence & influence seem to have been the
only reasons for their superiority; a superiority so degrading to the
Commons that in the first summons we find the peers are called upon to
consult the commons to consent. From this time the peers have composed a
part of the British Legislature, and notwithstanding their power and
influence have diminished & those of the Commons have increased, yet
still they have always formed an excellent balance ag
st
either
the encroachments of the Crown or the people.
[pg 227]
I have said that such a body cannot exist in this Country for ages, and
that untill the situation of our people is exceedingly changed no
necessity will exist for so permanent a part of the Legislature. To
illustrate this I have remarked that the people of the United States are
more equal in their circumstances than the people of any other Country—that
they have very few rich men among them,—by rich men I mean those
whose riches may have a dangerous influence, or such as are esteemed rich
in Europe—perhaps there are not one hundred such on the Continent;
that it is not probable this number will be greatly increased; that the
genius of the people their mediocrity of situation & the prospects
which are afforded their industry in a Country which must be a new one for
centuries are unfavorable to the rapid distinction of ranks. The
destruction of the right of primogeniture & the equal division of the
property of Intestates will also have an effect to preserve this
mediocrity; for laws invariably affect the manners of a people. On the
other hand that vast extent of unpeopled territory which opens to the
frugal & industrious a sure road to competency & independence will
effectually prevent for a considerable time the increase of the poor or
discontented, and be the means of preserving that equality of condition
which so eminently distinguishes us.
If equality is as I contend the leading feature of the U. States, where
then are the riches & wealth whose representation & protection is
the peculiar province of this Permanent body. Are they in the hands of the
few who may be called rich; in the possession of less than a hundred
citizens? Certainly not. They are in the great body of the people, among
whom there are no men of wealth, and very few of real poverty.—Is it
probable that a change will be created, and that a new order of men will
arise? If under the British Government, for a
[pg 228]
century no such
change was probable, I think it may be fairly concluded it will not take
place while even the semblance of Republicanism remains.—How is this
change to be effected? Where are the sources from whence it is to flow?
From the landed interest? No. That is too unproductive & too much
divided in most of the States. From the Monied interest? If such exists at
present, little is to be apprehended from that source. Is it to spring
from commerce? I believe it would be the first instance in which a
nobility sprang from merchants. Besides, Sir, I apprehend that on this
point the policy of the U. States has been much mistaken. We have unwisely
considered ourselves as the inhabitants of an old instead of a new
country. We have adopted the maxims of a State full of people &
manufactures & established in credit. We have deserted our true
interest, and instead of applying closely to those improvements in
domestic policy which would have ensured the future importance of our
commerce, we have rashly & prematurely engaged in schemes as extensive
as they are imprudent. This however is an error which daily corrects
itself & I have no doubt that a few more severe trials will convince
us, that very different commercial principles ought to govern the conduct
of these States.
The people of this Country are not only very different from the
inhabitants of any State we are acquainted with in the modern world; but I
assert that their situation is distinct from either the people of Greece
or Rome, or of any State we are acquainted with among the antients.—Can
the orders introduced by the institution of Solon, can they be found in
the United States? Can the military habits & manners of Sparta be
resembled to our habits & manners? Are the distinction of Patrician
& Plebeian known among us? Can the Helvetic or Belgic confederacies,
or can the unwieldy, unmeaning body called
[pg 229]
the Germanic Empire,
can they be said to possess either the same or a situation like ours? I
apprehend not.—They are perfectly different, in their distinctions
of rank, their Constitutions, their manners & their policy.
Our true situation appears to me to be this,—a new extensive Country
containing within itself the materials for forming a Government capable of
extending to its Citizens all the blessings of Civil & religious
liberty—capable of making them happy at home. This is the great end
of Republican Establishments. We mistake the object of our Government, if
we hope or wish that it is to make us respectable abroad. Conquest or
superiority among other powers is not or ought not ever to be the object
of republican Systems. If they are sufficiently active & energetic to
rescue us from contempt & preserve our domestic happiness &
security, it is all we can expect from them,—it is more than almost
any other Government ensures to its citizens.
I believe this observation will be found generally true:—that no two
people are so exactly alike in their situation or circumstances as to
admit the exercise of the same Government with equal benefit; that a
system must be suited to the habits & genius of the People it is to
govern, and must grow out of them.
The people of the U. S. may be divided into three classes—
Professional
men
who must from their particular pursuits always have a considerable
weight in the Government while it remains popular—
Commercial men
who may or may not have weight as a wise or injudicious commercial policy
is pursued.—If that commercial policy is pursued which I conceive to
be the true one, the merchants of this Country will not or ought not for a
considerable time to have much weight in the political scale.—The
third is the
landed interest
, the owners and
[pg 230]
cultivators of the
soil, who are and ought ever to be the governing spring in the system.—These
three classes, however distinct in their pursuits are individually equal
in the political scale, and may be easily proved to have but one interest.
The dependence of each on the other is mutual. The merchant depends on the
planter. Both must in private as well as public affairs be connected with
the professional men; who in their turn must in some measure depend on
them. Hence it is clear from this manifest connection, & the equality
which I before stated exists, & must for the reasons then assign,
continue, that after all there is one, but one great & equal body of
Citizens composing the inhabitants of this Country among whom there are no
distinctions of rank, and very few or none of fortune.
For a people thus circumstanced are we then to form a Government & the
question is what sort of Government is best suited to them.
Will it be the British Gov
? No. Why? Because G. Britain
contains three orders of people distinct in their situation, their
possessions & their principles.—These orders combined form the
great body of the Nation. And as in national expences the wealth of the
whole community must contribute, so ought each component part to be
properly & duly represented.—No other combination of power could
form this due representation, but the one that exists.—Neither the
peers or the people could represent the royalty, nor could the Royalty
& the people form a proper representation for the Peers.—Each
therefore must of necessity be represented by itself, or the sign of
itself; and this accidental mixture has certainly formed a Government
admirably well balanced.
But the U. States contain but one order that can be assimilated to the
British Nation,—this is the order of Commons. They will not surely
then attempt to form a Government consisting of three
[pg 231]
branches, two of
which shall have nothing to represent. They will not have an Executive
& Senate (hereditary) because the King & Lords of England are so.
The same reasons do not exist and therefore the same provisions are not
necessary.
We must as has been observed suit our Governm
to the people it
is to direct. These are I believe as active, intelligent & susceptible
of good Governm
as any people in the world. The Confusion
which has produced the present relaxed State is not owing to them. It is
owing to the weakness & (defects) of a Gov
incapable of
combining the various interests it is intended to unite, and destitute of
energy.—All that we have to do then is to distribute the powers of
Gov
in such a manner, and for such limited periods, as while
it gives a proper degree of permanency to the Magistrate, will reserve to
the people, the right of election they will not or ought not frequently to
part with.—I am of opinion that this may easily be done; and that
with some amendments the propositions before the Committee will fully
answer this end.
No position appears to me more true than this; that the General Gov
cannot effectually exist without reserving to the States the possession of
their local rights. They are the instruments upon which the Union must
frequently depend for the support & execution of their powers, however
immediately operating upon the people, and not upon the States.
Much has been said about the propriety of abolishing the distinction of
State Governments, & having but one general System. Suffer me for a
moment to examine this question.
[107]
[107]
The
residue of this speech was not furnished, like the above, by Mr.
Pinckney.—Madison's Note.
Yates' report of the speech is meagre. The closing paragraph,
apparently the part lacking in Madison's report, is:
"While we were dependent on the crown of Great Britain, it was in
contemplation to form the whole into one; but it was found
impracticable. No legislature could make good laws for the whole,
nor can it now be done. It would necessarily place the power in the
hands of the few nearest the seat of government. State governments
must therefore remain, if you mean to prevent confusion. The general
negative powers will support the general government. Upon these
considerations, I am led to form the second branch differently from
the report. These powers are important, and the number not too
large, upon the principle of proportion. I have considered the
subject with great attention; and I propose this plan (reads it),
and if no better plan is proposed, I will then move its adoption."—Yates,
Secret Proceedings
, etc., 163.
[pg 232]
The mode of constituting the 2
branch being under
consideration.
The word "national" was struck out, and "United States" inserted.
Ghorum, inclined to a compromise as to the rule of
proportion. He thought there was some weight in the objections of the
small States. If V
should have 16. votes & Del
re
with several other States together 16, those from Virg
would
be more likely to unite than the others, and would therefore have an undue
influence. This remark was applicable not only to States, but to Counties
or other districts of the same State. Accordingly the Constitution of Mass
ts
had provided that the representatives of the larger districts should not
be in an exact ratio to their numbers, and experience he thought had shewn
the provision to be expedient.
Read. The States have heretofore been in a sort of
partnership. They ought to adjust their old affairs before they open a new
account. He brought into view the appropriation of the com̃on
interest in the Western lands, to the use of particular States. Let
justice be done on this head; let the fund be applied fairly & equally
to the discharge of the general debt, and the smaller States who had been
injured; would listen then perhaps to those ideas of just representation
which had been held out.
[pg 233]
Ghorum, did not see how the Convention could interpose in
the case. Errors he allowed had been committed on the subject. But Cong
were now using their endeavours to rectify them. The best remedy would be
such a Government as would have vigor enough to do justice throughout.
This was certainly the best chance that could be afforded to the smaller
States.
Wilson, the question is shall the members of the 2
branch be chosen by the Legislatures of the States? When he considered the
amazing extent of Country—the immense population which is to fill
it, the influence which the Gov
we are to form will have, not
only on the present generation of our people & their multiplied
posterity, but on the whole Globe, he was lost in the magnitude of the
object. The project of Henry the 4
th
& his Statesmen was
but the picture in miniature of the great portrait to be exhibited. He was
opposed to an election by the State Legislatures. In explaining his
reasons it was necessary to observe the twofold relation in which the
people would stand, 1. as Citizens of the Gen
Gov
2. as Citizens of their particular State. The Gen
Gov
was meant for them in the first capacity: the State Gov
ts
in
the second. Both Gov
ts
were derived from the people—both
meant for the people—both therefore ought to be regulated on the
same principles. The same train of ideas which belonged to the relation of
the Citizens to their State Gov
ts
were applicable to their
relation to the Gen
Gov
and in forming the latter,
we ought to proceed, by abstracting as much as possible from the idea of
the State Gov
ts
. With respect to the province & object of
the Gen
Gov
they should be considered as having no
existence. The election of the 2
branch by the Legislatures,
will introduce & cherish local interests & local prejudices. The
Gen
Gov
is not an assemblage of States, but of
individuals for certain political
[pg 234]
purposes—it is not meant for
the States, but for the individuals composing them; the
individuals
therefore not the
States
, ought to be represented in it: A
proportion in this representation can be preserved in the 2
as
well as in the 1
st
branch; and the election can be made by
electors chosen by the people for that purpose. He moved an amendment to
that effect which was not seconded.
Elseworth saw no reason for departing from the mode
contained in the Report. Whoever chooses the member, he will be a Citizen
of the State he is to represent & will feel the same spirit & act
the same part whether he be appointed by the people or the Legislature.
Every State has its particular views & prejudices, which will find
their way into the general Councils, through whatever channel they may
flow. Wisdom was one of the characteristics which it was in contemplation
to give the second branch. Would not more of it issue from the
Legislatures; than from an immediate election by the people. He urged the
necessity of maintaining the existence, & agency of the States.
Without their co-operation it would be impossible to support a Republican
Gov
over so great an extent of Country. An army could scarcely
render it practicable. The largest States are the worst Governed. Virg
is obliged to acknowledge her incapacity to extend her Gov
to
Kentuckey. Mass
ts
cannot keep the peace one hundred miles from
her capitol and is now forming an army for its support. How long Pen
may be free from a like situation cannot be foreseen. If the principles
& materials of our Gov
are not adequate to the extent of
these single States; how can it be imagined that they can support a single
Gov
throughout the U. States. The only chance of supporting a
Gen
Gov
lies in grafting it on that of the
individual States.
Doc
Johnson urged the necessity of preserving
[pg 235]
the State Gov
ts
which would be at the mercy of the Gen
Gov
on M
Wilson's plan.
Madison thought it w
obviate difficulty if the
present resol: were postponed, & the 8
th
taken up, which is
to fix the right of suffrage in the 2
branch.
Doc
Williamson professed himself a friend to such a system as
would secure the existence of the State Gov
ts
. The happiness of
the people depended on it. He was at a loss to give his vote as to the
Senate untill he knew the number of its members. In order to ascertain
this, he moved to insert these words after "2
branch of the
Nat
Legislature"—"who shall bear such proportion to the
of the 1
st
branch as 1 to ——." He was
not seconded.
Mason. It has been agreed on all hands that an efficient Gov
is necessary that to render it such it ought to have the faculty of self
defence, that to render its different branches effectual each of them
ought to have the same power of self defence. He did not wonder that such
an agreement should have prevailed in these points. He only wondered that
there should be any disagreement about the necessity of allowing the State
Gov
ts
the same self-defence. If they are to be preserved as he
conceived to be essential, they certainly ought to have this power. And
the only mode left of giving it to them, was by allowing them to appoint
the 2
branch of the Nat
Legislature.
Butler observing that we were put to difficulties at every
step by the uncertainty whether an equality or a ratio of representation w
prevail finally in the 2
branch, moved to postpone the 4
th
Resol: & to proceed to the Resol: on that point. M
Madison
seconded him.
On the question
Mass
ts
no. Con
no. N. Y. ay.
N. J. no. P
no, Del. no. M
no.
ay. N. C. no. S. C. ay. Geo. ay.
On a question to postpone the 4 and take up the 7
[pg 236]
Resol: ays, Mary
N. C. S. C. Geo;—Noes, Mass. C
N. Y. N. J. P
Del:
On the question to agree "that the members of the 2
branch be
chosen by the indiv
Legislatures" Mass
ts
ay.
Con
ay. N. Y. ay. N. J. ay. P
no.
Del. ay. M
ay. V
no. N. C. ay.
S. C. ay. Geo. ay.
[108]
[108]
Madison's
Note:
It must be kept in view that the largest States particularly
Pennsylvania & Virginia always considered the choice of the 2
Branch by the State Legislatures as opposed to a proportional
representation to which they were attached as a fundamental principle
of just Government. The smaller States who had opposite views, were
reinforced by the members from the large States most anxious to secure
the importance of the State Governments.
On a question on the clause requiring the age of 30 years at least,—it
was agreed to unanimously:
On a question to strike out the words, "sufficient to ensure their
independency" after the word "term" it was agreed to.
That the 2
branch hold their offices for a term of seven
years, considered.
Ghorum suggests a term of "4 years," 1/4 to be elected every
year.
Randolph, supported the idea of rotation, as favorable to
the wisdom & stability of the Corps, which might possibly be always
sitting, and aiding the Executive.
And moves after "7 years," to add, "to go out in fixt proportion" which
was agreed to.
Williamson suggests "6 years," as more convenient for
Rotation than 7 years.
Sherman seconds him.
Reed proposed that they s
hold their offices
"during good behaviour." Mr. R. Morris seconds him.
Gen
Pinkney, proposed "4 years." A longer term w
fix them at the seat of Gov
. They w
acquire an
interest there, perhaps transfer their property &
[pg 237]
lose sight of the States they represent. Under these circumstances the
distant States w
labour under great disadvantages.
[109]
[109]
According to Yates, Madison followed Pinckney:
"Mr. Madison. We are proceeding in the same manner that was done
when the Confederation was first formed. Its original draft was
excellent, but in its progress and completion it became so
insufficient as to give rise to the present Convention. By the vote
already taken, will not the temper of the state legislatures
transfuse itself into the Senate? Do we create a free government?"—Yates,
Secret Proceedings
, etc., 168.
Sherman moved to strike out "7 years" in order to take
questions on the several propositions.
On the question to strike out "seven"
Mass
ts
ay. Con
ay. N. Y. ay.
N. J. ay. P
no. Del. no. M
div
no. N. C. ay. S. C. ay. Geo. ay.
On the question to insert "6 years", which failed 5 St
being
ay. 5 no, & 1 divided
Mass
ts
no. Con
ay. N. Y. no.
N. J. no. P
ay. Del. ay. M
div
ay. N. C. ay. S. C. no. Geo. no.
On a motion to adjourn, the votes were 5 for 5 ag
st
it & 1
divided,—Con. N. J. P
Del. V
ay.
Mass
ts
N. Y. N. C. S. C. Geo: no. Mary
divided.
On the question for "5 years" it was lost.
Mass
ts
no. Con
ay. N. Y. no.
N. J. no. P
ay. Del. ay. M
div
ay. N. C. ay. S. C. no. Geo. no.
Adj
Tuesday, June 26. in Convention
The duration of the 2
branch under consideration.
Ghorum moved to fill the blank with "six years," one third
of the members to go out every second year.
Wilson 2
ded
the motion.
[pg 238]
Gen
Pinkney opposed six years in favor of four years. The
States he said had different interests. Those of the Southern, and of S. Carolina
in particular were different from the Northern. If the Senators should be
appointed for a long term, they w
settle in the State where
they exercised their functions; and would in a little time be rather the
representatives of that than of the State appoint
them.
Reed mov
that the term be nine years. This w
admit of a very convenient rotation, one third going out triennially. He w
still prefer "during good behaviour," but being little supported in that
idea, he was willing to take the longest term that could be obtained.
Broome 2
ded
the motion.
Madison. In order to judge of the form to be given to this
institution, it will be proper to take a view of the ends to be served by
it. These were first to protect the people ag
st
their rulers;
secondly to protect the people ag
st
the transient impressions
into which they themselves might be led. A people deliberating in a
temperate moment, and with the experience of other nations before them, on
the plan of Gov
most likely to secure their happiness, would
first be aware, that those charg
with the public happiness
might betray their trust. An obvious precaution ag
st
this
danger w
be to divide the trust between different bodies of
men, who might watch & check each other. In this they w
be
governed by the same prudence which has prevailed in organizing the
subordinate departments of Gov
, where all business liable to
abuses is made to pass thro' separate hands, the one being a check on
the other. It w
next occur to such people, that they
themselves were liable to temporary errors, thro' want of information
as to their true interest, and that men chosen for a short term, &
employed but a small portion of that in public affairs, might err from the
[pg 239]
same cause. This reflection w
naturally suggest that the Gov
be so constituted as that one of its branches might have an opp
of acquiring a competent knowledge of the public interests. Another
reflection equally becoming a people on such an occasion, w
be
that they themselves, as well as a numerous body of Representatives, were
liable to err also, from fickleness and passion. A necessary fence ag
st
this danger would be to select a portion of enlightened citizens, whose
limited number, and firmness might seasonably interpose ag
st
impetuous councils. It ought finally to occur to a people deliberating on
a Gov
for themselves, that as different interests necessarily
result from the liberty meant to be secured, the major interest might
under sudden impulses be tempted to commit injustice on the minority. In
all civilized Countries the people fall into different classes hav
a real or supposed difference of interests. There will be creditors &
debtors; farmers, merch
ts
& manufacturers. There will be
particularly the distinction of rich & poor. It was true as had been
observ
(by M
Pinkney) we had not among us those
hereditary distinctions, of rank which were a great source of the contests
in the ancient Gov
ts
as well as the modern States of Europe,
nor those extremes of wealth or poverty which characterize the latter. We
cannot however be regarded even at this time, as one homogeneous mass, in
which every thing that affects a part will affect in the same manner the
whole. In framing a system which we wish to last for ages, we sh
not lose sight of the changes which ages will produce. An increase of
population will of necessity increase the proportion of those who will
labour under all the hardships of life, & secretly sigh for a more
equal distribution of its blessings. These may in time outnumber those who
are placed above the feelings of indigence. According to the equal laws of
suffrage,
[pg 240]
the power will slide into the hands of the former. No agrarian attempts
have yet been made in this Country, but symptoms, of a levelling spirit,
as we have understood, have sufficiently appeared in certain quarters, to
give notice of the future danger. How is this danger to be guarded ag
st
on the republican principles? How is the danger in all cases of interested
coalitions to oppress the minority to be guarded ag
st
? Among
other means by the establishment of a body in the Gov
sufficiently respectable for its wisdom & virtue, to aid on such
emergencies, the preponderance of justice by throwing its weight into that
scale. Such being the objects of the second branch in the proposed Gov
he thought a considerable duration ought to be given to it. He did not
conceive that the term of nine years could threaten any real danger; but
in pursuing his particular ideas on the subject, he should require that
the long term allowed to the 2
branch should not commence till
such a period of life, as would render a perpetual disqualification to be
re-elected little inconvenient either in a public or private view. He
observed that as it was more than probable we were now digesting a plan
which in its operation w
decide for ever the fate of
Republican Gov
we ought not only to provide every guard to
liberty that its preservation c
require, but be equally
careful to supply the defects which our own experience had particularly
pointed out.
Sherman. Gov
is instituted for those who live
under it. It ought therefore to be so constituted as not to be dangerous
to their liberties. The more permanency it has the worse if it be a bad
Gov
. Frequent elections are necessary to preserve the good
behavior of rulers. They also tend to give permanency to the Government,
by preserving that good behavior, because it ensures their re-election. In
Connecticut elections have been very frequent, yet great stability &
uniformity both as to persons
[pg 241]
& measures have been experienced
from its original establishm
to the present time; a period of
more than a 130 years. He wished to have provision made for steadiness
& wisdom in the system to be adopted; but he thought six or four years
would be sufficient. He sh
be content with either.
Read wished it to be considered by the small States that it
was their interest that we should become one people as much as possible;
that State attachments sh
be extinguished as much as possible;
that the Senate, sh
be so constituted as to have the feelings
of Citizens of the whole.
Hamilton. He did not mean to enter particularly into the
subject. He concurred with M
Madison in thinking we were now
to decide forever the fate of Republican Government; and that if we did
not give to that form due stability and wisdom, it would be disgraced
& lost among ourselves, disgraced & lost to mankind forever. He
acknowledged himself not to think favorably of Republican Government; but
addressed his remarks to those who did think favorably of it, in order to
prevail on them to tone their Government as high as possible. He professed
himself to be as zealous an advocate for liberty as any man whatever, and
trusted he should be as willing a martyr to it though he differed as to
the form in which it was most eligible.—He concurred also in the
general observations of (M
Madison) on the subject, which
might be supported by others if it were necessary. It was certainly true
that nothing like an equality of property existed; that an inequality
would exist as long as liberty existed, and that it would unavoidably
result from that very liberty itself. This inequality of property
constituted the great & fundamental distinction in Society. When the
Tribunitial power had levelled the boundary between the
patricians
plebeians
, what followed? The distinction
[pg 242]
between rich & poor was substituted. He meant not however to enlarge
on the subject. He rose principally to remark that (M
Sherman)
seemed not to recollect that one branch of the proposed Gov
was so formed, as to render it particularly the guardians of the poorer
orders of Citizens; nor to have adverted to the true causes of the
stability which had been exemplified in Con
. Under the British
system as well as the federal, many of the great powers appertaining to
Gov
particularly all those relating to foreign Nations were
not in the hands of the Gov
there. Their internal affairs also
were extremely simple, owing to sundry causes many of which were peculiar
to that Country. Of late the Governm
had entirely given way to
the people, and had in fact suspended many of its ordinary functions in
order to prevent those turbulent scenes which had appeared elsewhere. He
asks M
S. whether the State at this time dare impose &
collect a tax on y
people? To these causes & not to the
frequency of elections, the effect as far as it existed ought to be
chiefly ascribed.
Gerry, wished we could be united in our ideas concerning a
permanent Gov
. All aim at the same end, but there are great
differences as to the means. One circumstance He thought should be
carefully attended to. There was not 1/1000 part of our fellow citizens
who were not ag
st
every approach towards Monarchy. Will they
ever agree to a plan which seems to make such an approach. The Convention
ought to be extremely cautious in what they hold out to the people.
Whatever plan may be proposed will be espoused with warmth by many out of
respect to the quarter it proceeds from as well as from an approbation of
the plan itself. And if the plan should be of such a nature as to rouse a
violent opposition, it is easy to foresee that discord & confusion
will ensue, and it is even possible that we may
[pg 243]
become a prey to
foreign powers. He did not deny the position of M
Madison,
that the majority will generally violate justice when they have an
interest in so doing: But did not think there was any such temptation in
this Country. Our situation was different from that of G. Britain; and the
great body of lands yet to be parcelled out & settled would very much
prolong the difference. Notwithstanding the symptoms of injustice which
had marked many of our public Councils, they had not proceeded so far as
not to leave hopes, that there would be a sufficient sense of justice
& virtue for the purpose of Gov
. He admitted the evils
arising from a frequency of elections; and would agree to give the Senate
a duration of four or five years. A longer term would defeat itself. It
never would be adopted by the people.
Wilson did not mean to repeat what had fallen from others,
but w
add an observation or two which he believed had not yet
been suggested. Every nation may be regarded in two relations 1 to its own
citizens. 2 to foreign nations. It is therefore not only liable to anarchy
& tyranny within, but has wars to avoid & treaties to obtain from
abroad. The Senate will probably be the depository of the powers
concerning the latter objects. It ought therefore to be made respectable
in the eyes of foreign Nations. The true reason why G. Britain has not yet
listened to a commercial treaty with us has been, because she had no
confidence in the stability or efficacy of our Government. 9 years with a
rotation, will provide these desirable qualities; and give our Gov
an advantage in this respect over Monarchy itself. In a Monarchy much must
always depend on the temper of the man. In such a body, the personal
character will be lost in the political. He w
add another
observation. The popular objection ag
st
appointing any public
body for a long term was that it might
[pg 244]
by gradual
encroachments prolong itself first into a body for life, and finally
become a hereditary one. It would be a satisfactory answer to this
objection that as 1/3 would go out triennially, there would be always
three divisions holding their places for unequal times, and consequently
acting under the influence of different views, and different impulses.—On
the question for 9 years, 1/3 to go out triennially,
Mass
ts
no. Con
, no. N. Y. no. N. J. no.
ay. Del. ay. M
no. V
ay.
N. C. no. S. C. no. Geo. no.
On the question for 6 years,
[110]
1/3 to go out biennially
Mass
ts
ay. Con
ay. N. Y. no.
N. J. no. P
ay. Del. ay. M
ay.
ay. N. C. ay. S. C. no. Geo. no.
[110]
Yates
has the question on
five
years, but this is obviously a
mistake.—Yates,
Secret Proceedings
, etc., 172.
"To receive fixt stipends by which they may be compensated for their
services" considered.
General Pinkney proposed "that no Salary should be allowed." As this (the
Senatorial) branch was meant to represent the wealth of the Country, it
ought to be composed of persons of wealth; and if no allowance was to be
made the wealthy alone would undertake the service. He moved to strike out
the clause.
Doct
Franklin seconded the motion. He wished the Convention to
stand fair with the people. There were in it a number of young men who
would probably be of the Senate. If lucrative appointments should be
recommended we might be chargeable with having carved out places for
ourselves. On the question,—Mas
ts
Connecticut
[111]
S. Carolina ay. N. Y. N. J. Del. Virg
N. C.
Geo. no.
[111]
Quer.
whether Connecticut should not be, no, & Delaware, ay.—Madison's
Note.
Williamson moved to change the expression into these words
to wit "to receive a compensation
[pg 245]
for the devotion of their time to
the public service." The motion was seconded by M
Elseworth,
and agreed to by all the States except S. Carol
. It
seemed to be meant only to get rid of the word "fixt" and leave greater
room for modifying the provision on this point.
Elseworth moved to strike out "to be paid out of the Nat
Treasury" and insert "to be paid by their respective States." If the
Senate was meant to strengthen the Gov
it ought to have the
confidence of the States. The States will have an interest in keeping up a
representation, and will make such provision for supporting the members as
will ensure their attendance.
Madison considered this as a departure from a fundamental
principle, and subverting the end intended by allowing the Senate a
duration of 6 years. They would if this motion should be agreed to, hold
their places during pleasure; during the pleasure of the State
Legislatures. One great end of the institution was, that being a firm,
wise and impartial body, it might not only give stability to the Gen
Gov
in its operations on individuals, but hold an even balance
among different States. The motion would make the Senate like Congress,
the mere Agents & Advocates of State interests & views, instead of
being the impartial umpires & Guardians of justice and the general
Good. Cong
had lately by the establishment of a board with
full powers to decide on the mutual claims between the U. States & the
individual States, fairly acknowledged themselves to be unfit for
discharging this part of the business referred to them by the
Confederation.
Dayton
[112]
considered the payment
of the Senate by the States as fatal to their independence, he was decided
for paying them out of the Nat
Treasury.
[112]
"Cap.
Dayton is a young Gentleman of talents, with ambition to exert them.
He possesses a good education and some reading; he speaks well, and
seems desirous of improving himself in Oratory. There is an
impetuosity in his temper that is injurious to him; but there is an
honest rectitude about him that makes him a valuable Member of
Society, and secures to him the esteem of all good Men. He is about 30
years old, served with me a Brother Aid to General Sullivan in the
Western Expedition of '79."—Pierce's Notes,
Am. Hist.
Rev.
, iii., 328.
[pg 246]
On the question for payment of the Senate to be left to the States as
moved by M
Elseworth.
Mass
ts
no. Con
ay. N. Y. ay.
N. J. ay. P
no. Del. no. M
no.
no. N. C. no. S. C. ay. Geo. ay.
Col. Mason. He did not rise to make any motion, but to hint an idea which
seemed to be proper for consideration. One important object in
constituting the Senate was to secure the rights of property. To give them
weight & firmness for this purpose, a considerable duration in office
was thought necessãy. But a longer term than 6 years, would be of no avail
in this respect, if needy persons should be appointed. He suggested
therefore the propriety of annexing to the office a qualification of
property. He thought this would be very practicable; as the rules of
taxation would supply a scale for measuring the degree of wealth possessed
by every man.
A question was then taken whether the words "to be paid out of the public
treasury," should stand.
Mass
ts
ay. Con
no. N. Y. no.
N. J. no. P
ay. Del. ay. M
ay.
ay. N. C. no. S. C. no. Geo. no.
Butler moved to strike out the ineligibility of Senators to
State offices
Mr. Williamson seconded the motion.
[113]
[113]
According to Yates, before Wilson spoke:
"Mr. Madison. Congress heretofore depended on state interests; we
are now going to pursue the same plan."—Yates,
Secret
Proceedings
, etc., 173.
[pg 247]
Wilson remarked the additional dependance this w
create in the Senators on the States. The longer the time he observed
allotted to the Officer, the more compleat will be the dependance if it
exists at all.
[114]
[114]
After
Wilson, according to Yates:
"Mr. Butler. This second branch I consider as the aristocratic part
of our government; and they must be controlled by the states, or
they will be too independent."—Yates,
Secret Proceedings
etc., 173.
Gen
Pinkney was for making the States as much as could be
conveniently done, a part of the Gen
Gov
. If the
Senate was to be appointed by the States, it ought in pursuance of the
same idea to be paid by the States: and the States ought not to be barred
from the opportunity of calling members of it into offices at home. Such a
restriction would also discourage the ablest men from going into the
Senate.
Williamson moved a resolution so penned as to admit of the
two following questions. 1. whether the members of the Senate should be
ineligible to & incapable of holding offices
under the U. States
2. Whether &c. under the
particular States
On the Question to postpone in order to consider Williamson's Resol
Mas
ts
no. Con
ay. N. Y. no. N. J. no.
ay. Del. ay. M
ay. V
ay.
N. C. ay. S. C. ay. Geo. ay.
Gerry & M
Madison move to add to M
Williamson's 1. Quest: "and for 1 year thereafter." On this amend
Mas
ts
no. Con
ay. N. Y. ay.
N. J. no. P
no. Del. ay. M
ay.
ay. N. C. ay. S. C. ay. Geo. no.
On M
Will[iam]son's 1 Question as amend
ed
vz,
inelig: & incapable &c. &c. for 1 year &c. ag
to unãmously.
On the 2. question as to ineligibility &c. to State offices,
[pg 248]
Mass. ay. C
no. N. Y. no. N. J. no.
ay. Del. no. M
no. V
ay.
N. C. no. S. C. no. Geo. no.
The 5. Resol: "that each branch have the right of originating acts," was
agreed to nem. con.
Adj
Wednesday June 27. in Convention.
Rutlidge moved to postpone the 6
th
Resolution,
defining the powers of Cong
in order to take up the 7 & 8
which involved the most fundamental points; the rules of suffrage in the 2
branches which was agreed to nem. con.
A question being proposed on the Resol: 7; declaring that the suffrage in
the first branch sh
be according to an equitable ratio.
L. Martin
[115]
contended at great
length and with great eagerness that the General Gov
was meant
merely to preserve the State Govern
ts
not to govern
individuals: that its powers ought to be kept within narrow limits: that
if too little power was given to it, more might be added; but that if too
much, it could never be resumed: that individuals as such have little to
do but with their own States; that the Gen
Gov
has
no more to apprehend from the States composing the Union, while it pursues
proper measures, that Gov
over individuals has to apprehend
from its subjects: that to resort to the Citizens at large for their
sanction to a new Govern
will be throwing them back into a
state of Nature; that the dissolution of the State Gov
ts
is
involved in the nature of the process; that the people have no right
[pg 249]
to
do this without the consent of those to whom they have delegated their
power for State purposes: through their tongues only they can speak,
through their ears, only can hear: that the States have shewn a good
disposition to comply with the Acts of Cong
, weak,
contemptibly weak as that body has been; and have failed through inability
alone to comply: that the heaviness of the private debts, and the waste of
property during the war, were the chief causes of this inability; that he
did not conceive the instances mentioned by M
Madison of
compacts between V
& M
between P
& N. J. or of troops raised by Mass
ts
for defence
against the Rebels, to be violations of the articles of confederation—that
an equal vote in each State was essential to the federal idea, and was
founded in justice & freedom, not merely in policy: that tho' the
States may give up this right of sovereignty, yet they had not, and ought
not: that the States like individuals were in a State of nature equally
sovereign & free. In order to prove that individuals in a State of
Nature are equally free & independent he read passages from Locke,
Vattel, Lord Summers—Priestly. To prove that the case is the same
with States till they surrender their equal sovereignty, he read other
passages in Locke & Vattel, and also Rutherford: that the States being
equal cannot treat or confederate so as to give up an equality of votes
without giving up their liberty: that the propositions on the table were a
system of slavery for 10 States: that as V
Mass
ts
& P
have 42/90 of the votes they can do as they please
without a miraculous Union of the other ten: that they will have nothing
to do, but to gain over one of the ten to make them compleat masters of
the rest; that they can then appoint an Execut
& Judiciary
& legislate for them as they please: that there was & would
continue a natural predilection & partiality in men for their own
States; that the
[pg 250]
States, particularly the smaller, would never allow a negative to be
exercised over their laws: that no State in Ratifying the Confederation
had objected to the equality of votes; that the complaints at present run
not ag
st
this equality but the want of power: that 16 members
from V
would be more likely to act in concert than a like
number formed of members from different States: that instead of a junction
of the small States as a remedy, he thought a division of the large States
would be more eligible.—This was the substance of a speech which was
continued more than three hours. He was too much exhausted he said to
finish his remarks, and reminded the House that he should tomorrow, resume
them.
[115]
"Mr.
Martin, the Attorney-General from Maryland, spoke on this subject
upwards of three hours. As his arguments were too diffuse, and in many
instances desultory, it was not possible to trace him through the
whole, or to methodize his ideas into a systematic or argumentative
arrangement."—Yates,
Secret Proceedings
, etc., 174.
Adj
Thursday June 28th. in Convention
L. Martin resumed his discourse,
[116]
contending that the Gen
Gov
ought to be formed for
the States,
[pg 251]
not for individuals: that if the States were to have votes in proportion
to their numbers of people, it would be the same thing whether their
representatives were chosen by the Legislatures or the people; the smaller
States would be equally enslaved; that if the large States have the same
interest with the smaller as was urged, there could be no danger in giving
them an equal vote; they would not injure themselves, and they could not
injure the large ones on that supposition without injuring themselves and
if the interests, were not the same, the inequality of
[pg 252]
suffrage w
be dangerous to the smaller States: that it will be
in vain to propose any plan offensive to the rulers of the States, whose
influence over the people will certainly prevent their adopting it: that
the large States were weak at present in proportion to their extent; &
could only be made formidable to the small ones, by the weight of their
votes: that in case a dissolution of the Union should take place, the
small States would have nothing to fear from their power; that if in such
a case the three great States should league themselves together, the other
ten could do so too; & that he had rather see partial Confederacies
take place, than the plan on the table. This was the substance of the
residue of his discourse which was delivered with much diffuseness &
considerable vehemence.
[116]
Yates
gives Martin's speech more fully:
"On federal grounds, it is said, that a minority will govern a
majority—but on the Virginia plan a minority would tax a
majority. In a federal government, a majority of states must and
ought to tax. In the local government of states, counties may be
unequal—still numbers, not property, govern. What is the
government now forming, over states or persons? As to the latter,
their rights cannot be the object of a general government. These are
already secured by their guardians, the state governments. The
general government is therefore intended only to protect and guard
the rights of the states as states.
"This general government, I believe, is the first upon earth which
gives checks against democracies or aristocracies. The only
necessary check in a general government ought to be a restraint to
prevent its absorbing the powers of the state governments.
Representation on federal principles can only flow from state
societies. Representation and taxation are ever inseparable—not
according to the quantum of property, but the quantum of freedom.
"Will the representatives of a state forget state interests? The
mode of election cannot change it. These prejudices cannot be
eradicated—Your general government cannot be just or equal
upon the Virginia plan, unless you abolish state interests. If this
cannot be done, you must go back to principles purely federal.
"On this latter ground, the state legislatures and their
constituents will have no interests to pursue different from the
general government, and both will be interested to support each
other. Under these ideas can it be expected that the people can
approve the Virginia plan? But it is said, the people, not the state
legislatures, will be called upon for approbation—with an
evident design to separate the interests of the governors from the
governed. What must be the consequence? Anarchy and confusion. We
lose the ideas of the powers with which we are intrusted. The
legislatures must approve. By them it must, on your own plan, be
laid before the people. How will such a government, over so many
great states, operate. Wherever new settlements have been formed in
large states, they immediately want to shake off their independency.
Why? Because the government is too remote for their good. The people
want it nearer home.
"The basis of all ancient and modern confederacies is the freedom
and the independency of the states composing it. The states forming
the amphictionic council were equal, though Lacedemon, one of the
greatest states, attempted the exclusion of three of the lesser
states from this right. The plan reported, it is true, only intends
to diminish those rights, not to annihilate them—It was the
ambition and power of the great Grecian states which at last ruined
this respectable council. The states as societies are ever
respectful. Has Holland or Switzerland ever complained of the
equality of the states which compose their respective confederacies?
Bern and Zurich are larger than the remaining eleven cantons—so
of many of the states of Germany; and yet their governments are not
complained of. Bern alone might usurp the whole power of the
Helvetic confederacy, but she is contented still with being equal.
"The admission of the larger states into the confederation, on the
principle of equality, is dangerous—But on the Virginia system
it is ruinous and destructive. Still it is the true interest of all
the states to confederate—It is their joint efforts which must
protect and secure us from foreign danger, and give us peace and
harmony at home.
"(Here Mr. Martin entered into a detail of the comparative powers of
each state, and stated their probable weakness and strength.)
"At the beginning of our troubles with Great Britain, the smaller
states were attempted to be cajoled to submit to the views of that
nation, lest the larger states should usurp their rights. We then
answered them—your present plan is slavery, which on the
remote prospect of a distant evil, we will not submit to.
"I would rather confederate with any single state, than submit to
the Virginia plan. But we are already confederated, and no power on
earth can dissolve it but by the consent of
all
the
contracting powers—and four states, on this floor, have
already declared their opposition to annihilate it. Is the old
confederation dissolved, because some of the states wish a new
confederation?"—Yates,
Secret Proceedings
, etc., 177.
Lansing & M
Dayton moved to strike out
"not," so that the 7 art. might read that the rights of suffrage in the 1
st
branch ought to be according to the rule established by the
Confederation."
Dayton expressed great anxiety that the question might not
be put till tomorrow; Govern
Livingston
[pg 253]
being kept away by
indisposition, and the representation of N. Jersey thereby suspended.
Williamson, thought that if any political truth could be
grounded on mathematical demonstration, it was that if the States were
equally sovereign now, and parted with equal proportions of sovereignty,
that they would remain equally sovereign. He could not comprehend how the
smaller States would be injured in the case, and wished some Gentleman
would vouchsafe a solution of it. He observed that the small States, if
they had a plurality of votes would have an interest in throwing the
burdens off their own shoulders on those of the large ones. He begged that
the expected addition of new States from the Westward might be kept in
view. They would be small States, they would be poor States, they would be
unable to pay in proportion to their numbers; their distance from market
rendering the produce of their labour less valuable; they would
consequently be tempted to combine for the purpose of laying burdens on
comm̃erce & consumption which would fall with greatest weight on
the old States.
Madison, s
he was much disposed to concur in any
expedient not inconsistent with fundamental principles, that could remove
the difficulty concerning the rule of representation. But he could neither
be convinced that the rule contended for was just, nor necessary for the
safety of the small States ag
st
the large States. That it was
not just, had been conceded by M
Breerly & M
Paterson themselves. The expedient proposed by them was a new partition of
the territory of the U. States. The fallacy of the reasoning drawn from
the equality of Sovereign States in the formation of compacts, lay in
confounding together mere Treaties, in which were specified certain duties
to which the parties were to be bound, and certain rules by which their
[pg 254]
subjects were to be reciprocally governed in their intercourse, with a
compact by which an authority was created paramount to the parties, &
making laws for the government of them. If France, England & Spain
were to enter into a Treaty for the regulation of commerce &c with the
Prince of Monacho & 4 or 5 other of the smallest sovereigns of Europe,
they would not hesitate to treat as equals, and to make the regulations
perfectly reciprocal. W
the case be the same, if a Council
were to be formed of deputies from each with authority and discretion, to
raise money, levy troops, determine the value of coin &c? Would 30 or
40, million of people submit their fortunes into the hands of a few
thousands? If they did it would only prove that they expected more from
the terror of their superior force, than they feared from the selfishness
of their feeble associates. Why are Counties of the Same States
represented in proportion to their numbers? Is it because the
representatives are chosen by the people themselves? So will be the
representatives in the Nation
Legislature. Is it because, the
larger have more at stake than the smaller? The Case will be the same with
the larger & smaller States. Is it because the laws are to operate
immediately on their persons & properties? The same is the case in
some degree as the articles of confederation stand; the same will be the
case in a far greater degree, under the plan proposed to be substituted.
In the cases of captures, of piracies, and of offences in a federal army,
the property & persons of individuals depend on the laws of Cong
By the plan proposed a compleat power of taxation, the highest prerogative
of supremacy is proposed to be vested in the National Gov
Many other powers are added which assimilate it to the Gov
of
individual States. The negative proposed on the State laws, will make it
an essential branch of the State Legislatures & of course will
[pg 255]
require that it should be exercised by a body established on like
principles with the other branches of those Legislatures.—That it is
not necessãy to secure the small States ag
st
the large ones he
conceived to be equally obvious: Was a combination of the large ones
dreaded? This must arise either from some interest common to V
Mass
ts
& P
& distinguishing them from the
other States, or from the mere circumstance of similarity of size. Did any
such common interest exist? In point of situation they could not have been
more effectually separated from each other by the most jealous citizen of
the most jealous State. In point of manners, Religion, and the other
circumstances which sometimes beget affection between different
communities, they were not more assimilated than the other States—In
point of the staple productions they were as dissimilar as any three other
States in the Union. The Staple of Mass
ts
was
fish
, of P
flower
, of V
Tob
Was a Combination
to be apprehended from the mere circumstance of equality of size?
Experience suggested no such danger. The journals of Cong
did
not present any peculiar association of these States in the votes
recorded. It had never been seen that different Counties in the same
State, conformable in extent, but disagreeing in other circumstances,
betrayed a propensity to such combinations. Experience rather taught a
contrary lesson. Among individuals of superior eminence & weight in
Society, rivalships were much more frequent than coalitions. Among
independent Nations, pre-eminent over their neighbours, the same remark
was verified. Carthage & Rome tore one another to pieces instead of
uniting their forces to devour the weaker nations of the Earth. The Houses
of Austria & France were hostile as long as they remained the greatest
powers of Europe. England & France have succeeded to the pre-eminence
& to the enmity. To this principle we
[pg 256]
owe perhaps our
liberty. A coalition between those powers would have been fatal to us.
Among the principal members of antient & Modern confederacies, we find
the same effect from the same cause. The contentions, not the Coalitions
of Sparta, Athens & Thebes, proved fatal to the smaller members of the
Amphyctionic Confederacy. The contentions, not the combinations of Prussia
& Austria, have distracted & oppressed the German empire. Were the
large States formidable
singly
to their smaller neighbours? On this
supposition the latter ought to wish for such a General Gov
as
will operate with equal energy on the former as on themselves. The more
lax the band, the more liberty the larger will have to avail themselves of
their superior force. Here again Experience was an instructive monitor.
What is y
situation of the weak compared with the strong in
those stages of civilization in which the violence of individuals is least
controuled by an efficient Government? The Heroic period of Antient
Greece, the feudal licentiousness of the middle ages of Europe, the
existing condition of the American Savages, answer this question. What is
the situation of the minor sovereigns in the great society of independent
nations, in which the more powerful are under no controul but the nominal
authority of the law of Nations? Is not the danger to the former exactly
in proportion to their weakness. But there are cases still more in point.
What was the condition of the weaker members of the Amphyctionic
Confederacy. Plutarch (life of Themistocles) will inform us that it
happened but too often that the strongest cities corrupted & awed the
weaker, and that Judgment went in favor of the more powerful party. What
is the condition of the lesser states in the German Confederacy? We all
know that they are exceedingly trampled upon: and that they owe their
safety as far as they enjoy it, partly to their enlisting themselves,
[pg 257]
under the rival banners of the pre-eminent members, partly to alliances
with neighbouring Princes which the Constitution of the Empire does not
prohibit. What is the state of things in the lax system of the Dutch
Confederacy? Holland contains about 1/2 the People, supplies about 1/2 of
the money, and by her influence, silently & indirectly governs the
whole republic. In a word; the two extremes before us are a perfect
separation & a perfect incorporation, of the 13 States. In the first
case they would be independent nations subject to no law, but the law of
nations. In the last, they would be mere counties of one entire republic,
subject to one common law. In the first case the smaller States would have
every thing to fear from the larger. In the last they would have nothing
to fear. The true policy of the small States therefore lies in promoting
those principles & that form of Gov
which will most
approximate the States to the condition of counties. Another consideration
may be added. If the Gen
Gov
be feeble, the large
States distrusting its continuance, and foreseeing that their importance
& security may depend on their own size & strength, will never
submit to a partition. Give to the Gen
Gov
sufficient energy & permanency, & you remove the objection.
Gradual partitions of the large, & junctions of the small States will
be facilitated, and time may effect that equalization, which is wished for
by the small States now, but can never be accomplished at once.
Wilson. The leading argument of those who contend for
equality of votes among the States is that the States as such being equal,
and being represented not as districts of individuals, but in their
political & corporate capacities, are entitled to an equality of
suffrage. According to this mode of reasoning the representation of the
boroughs in Engl[~d] which has been allowed on all hands to be the rotten
[pg 258]
part of the Constitution, is perfectly right & proper. They are like
the States represented in their corporate capacity like the States
therefore they are entitled to equal voices, old Sarum to as many as
London. And instead of the injury supposed hitherto to be done to London,
the true ground of Complaint lies with old Sarum: for London instead of
two which is her proper share, sends four representatives to Parliament.
[117]
[117]
According to King's Notes, Charles Pinckney spoke after Madison: "
Charles
Pinckney.
The Honors & offices may become the objects of
strong desire and of combination to acquire them. If Representatives
be apportioned among the States in the Ratio of numbers, the Citizens
will be free and equal but the States will be unequal, and their
sovereignty will be degraded."—King's
Life and
Correspondence of Rufus King
, i., 610.
Sherman. The question is not what rights naturally belong to
man; but how they may be most equally & effectually guarded in
Society. And if some give up more than others in order to obtain this end,
there can be no room for complaint. To do otherwise, to require an equal
concession from all, if it would create danger to the rights of some,
would be sacrificing the end to the means. The rich man who enters into
Society along with the poor man, gives up more than the poor man, yet with
an equal vote he is equally safe. Were he to have more votes than the poor
man in proportion to his superior stake the rights of the poor man would
immediately cease to be secure. This consideration prevailed when the
articles of Confederation were formed.
[118]
[118]
According to Yates, Madison followed Sherman: "Mr. Madison. There is
danger in the idea of the gentleman from Connecticut. Unjust
representation will ever produce it. In the United Netherlands,
Holland governs the whole, although she has only one vote. The
counties in Virginia are exceedingly disproportionate, and yet the
smaller has an equal vote with the greater, and no inconvenience
arises."—Yates,
Secret Proceedings
, etc., 182.
The determination of the question from striking
[pg 259]
out the word "not"
was put off till tomorrow at the request of the Deputies of N. York.
Doc
Franklin. M
President.
The small progress we have made after 4 or five weeks close attendance
& continual reasonings with each other—our different sentiments
on almost every question, several of the last producing as many noes as
ays, is methinks a melancholy proof of the imperfection of the Human
Understanding. We indeed seem to feel our own want of political wisdom,
since we have been running about in search of it. We have gone back to
ancient history for models of Government, and examined the different forms
of those Republics which having been formed with the seeds of their own
dissolution now no longer exist. And we have viewed Modern States all
round Europe, but find none of their Constitutions suitable to our
circumstances.
In this situation of this Assembly, groping as it were in the dark to find
political truth, and scarce able to distinguish it when presented to us,
how has it happened, Sir, that we have not hitherto once thought of humbly
applying to the Father of lights to illuminate our understandings? In the
beginning of the Contest with G. Britain, when we were sensible of danger
we had daily prayer in this room for the divine protection.—Our
prayers, Sir, were heard, & they were graciously answered. All of us
who were engaged in the struggle must have observed frequent instances of
a superintending providence in our favor. To that kind providence we owe
this happy opportunity of consulting in peace on the means of establishing
our future national felicity. And have we now forgotten that powerful
friend? or do we imagine that we no longer need his assistance? I have
lived, Sir, a long time, and the longer I live, the more convincing proofs
I see of this truth—
that God Governs in the affairs of men
And if a
[pg 260]
sparrow cannot fall to the ground without his notice, is it probable that
an empire can rise without his aid? We have been assured, Sir, in the
sacred writings that "except the Lord build the House they labour in vain
that build it." I firmly believe this; and I also believe that without his
concurring aid we shall succeed in this political building no better than
the Builders of Babel: We shall be divided by our little partial local
interests; our projects will be confounded, and we ourselves shall become
a reproach and bye word down to future ages. And what is worse, mankind
may hereafter from this unfortunate instance, despair of establishing
Governments by Human wisdom and leave it to chance, war and conquest.
I therefore beg leave to move—that henceforth prayers imploring the
assistance of Heaven, and its blessings on our deliberations, be held in
this Assembly every morning before we proceed to business, and that one or
more of the Clergy of this City be requested to officiate in that Service—
Sherman seconded the motion.
Hamilton & several others expressed their apprehensions
that however proper such a resolution might have been at the beginning of
the convention, it might at this late day, 1. bring on it some
disagreeable animadversions, & 2. lead the public to believe that the
embarrassments and dissensions within the Convention, had suggested this
measure. It was answered by Doc
F. M
Sherman &
others, that the past omission of a duty could not justify a further
omission—that the rejection of such a proposition would expose the
Convention to more unpleasant animadversions than the adoption of it: and
that the alarm out of doors that might be excited for the state of things
within, would at least be as likely to do good as ill.
Williamson, observed that the true cause of the
[pg 261]
omission could not be mistaken. The Convention had no funds.
Randolph proposed in order to give a favorable aspect to y
measure, that a sermon be preached at the request of the convention on 4
th
of July, the anniversary of Independence; & thenceforward prayers be
used in y
Convention every morning. D
Frank
ded
this motion. After several unsuccessful attempts for
silently postponing this matter by adjourn
the adjournment was
at length carried, without any vote on the motion.
Friday June 29
th
in Convention.
Doc
Johnson. The controversy must be endless whilst Gentlemen
differ in the grounds of their arguments; Those on one side considering
the States as districts of people composing one political Society; those
on the other considering them as so many political societies. The fact is
that the States do exist as political Societies, and a Gov
is
to be formed for them in their political capacity, as well as for the
individuals composing them. Does it not seem to follow, that if the States
as such are to exist they must be armed with some power of self-defence.
This is the idea of (Col. Mason) who appears to have looked to the bottom
of this matter. Besides the aristocratic and other interests, which ought
to have the means of defending themselves, the States have their interests
as such, and are equally entitled to like means. On the whole he thought
that as in some respects the States are to be considered in their
political capacity, and in others as districts of individual citizens the
two ideas embraced on different sides, instead of being opposed to each
other, ought to be combined; that in
one
branch the
people
ought to be represented, in the
other
the
States
[pg 262]
Ghoram. The States as now confederated have no doubt a right
to refuse to be consolidated, or to be formed into any new system. But he
wished the small States which seemed most ready to object, to consider
which are to give up most, they or the larger ones. He conceived that a
rupture of the Union w
be an event unhappy for all, but surely
the large States would be least unable to take care of themselves, and to
make connections with one another. The weak therefore were most interested
in establishing some general system for maintaining order. If among
individuals, composed partly of weak, and partly of strong, the former
most need the protection of law & Government, the case is exactly the
same with weak & powerful States. What would be the situation of
Delaware (for these things he found must be spoken out, & it might as
well be done at first as last) what w
be the situation of
Delaware in case of a separation of the States? Would she not be at the
mercy of Pennsylvania? would not her true interest lie in being
consolidated with her, and ought she not now to wish for such a union with
under one Gov
as will put it out of the power of
Pen
to oppress her? Nothing can be more ideal than the danger
apprehended by the States from their being formed into one nation. Mass
ts
was originally three colonies, viz old Mass
ts
Plymouth—&
the province of Mayne. These apprehensions existed then. An incorporation
took place; all parties were safe & satisfied; and every distinction
is now forgotten. The case was similar with Connecticut & New haven.
The dread of Union was reciprocal; the consequence of it equally salutary
and satisfactory. In like manner N. Jersey has been made one society
out of two parts. Should a separation of the States take place, the fate
of N. Jersey w
be worst of all. She has no foreign
commerce & can have but little. P
& N. York will
continue to levy taxes on
[pg 263]
her consumption. If she consults her
interest she w
beg of all things to be annihilated. The
apprehensions of the small States ought to be appeased by another
reflection Mass
ts
will be divided. The province of Maine is
already considered as approaching the term of its annexation to it; and P
will probably not increase, considering the present state of her
population, & other events that may happen. On the whole he considered
a Union of the States as necessary to their happiness, & a firm Gen
Gov
as necessary to their Union. He sh
consider it
as his duty if his colleagues viewed the matter in the same light he did
to stay here as long as any other State would remain with them, in order
to agree on some plan that could with propriety be recommended to the
people.
Elseworth, did not despair. He still trusted that some good
plan of Gov
be devised & adopted.
Read. He sh
have no objection to the system if
it were truly national, but it has too much of a federal mixture in it.
The little States he thought had not much to fear. He suspected that the
large States felt their want of energy, & wished for a Gen
Gov
to supply the defect. Mass
ts
was evidently
labouring under her weakness and he believed Delaware w
not be
in much danger if in her neighbourhood. Delaware had enjoyed tranquillity
& he flattered himself w
continue to do so. He was not
however so selfish as not to wish for a good Gen
Gov
In order to obtain one the whole States must be incorporated. If the
States remain, the representatives of the large ones will stick together,
and carry everything before them. The Executive also will be chosen under
the influence of this partiality, and will betray it in his
administration. These jealousies are inseparable from the scheme of
leaving the States in existence. They must be done away. The ungranted
lands also which have been assumed
[pg 264]
by particular States must also be
given up. He repeated his approbation of the plan of M
Hamilton, & wished it to be substituted in the place of that on the
table.
Madison agreed with Doc
Johnson, that the mixed
nature of the Gov
ought to be kept in view; but thought too
much stress was laid on the rank of the States as political societies.
There was a gradation, he observed from the smallest corporation, with the
most limited powers, to the largest empire with the most perfect
sovereignty. He pointed out the limitations on the sovereignty of the
States, as now confederated their laws in relation to the paramount law of
the Confederacy were analagous to that of bye laws to the supreme law
within a State. Under the proposed Gov
the powers of the
States will be much farther reduced. According to the views of every
member, the Gen
Gov
will have powers far beyond
those exercised by the British Parliament, when the States were part of
the British Empire. It will in particular have the power, without the
consent of the State Legislatures, to levy money directly on the people
themselves; and therefore not to divest such
unequal
portions of
the people as composed the several States, of an
equal
voice, would
subject the system to the reproaches & evils which have resulted from
the vicious representation in G. B.
He entreated the gentlemen representing the small States to renounce a
principle w
ch
was confessedly unjust, which c
never
be admitted, & if admitted must infuse mortality into a Constitution
which we wished to last forever. He prayed them to ponder well the
consequences of suffering the Confederacy to go to pieces. It had been s
that the want of energy in the large states w
be a security to
the small. It was forgotten that this want of energy proceeded from the
supposed security of the States
[pg 265]
ag
st
all external danger.
Let each state depend on itself for its security, & let apprehensions
arise of danger, from distant powers or from neighbouring States, &
the languishing condition of all the States, large as well as small, w
soon be transformed into vigorous & high toned Gov
ts
. His
great fear was that their Gov
ts
then have too
much energy, that these might not only be formidable in the large to the
small States, but fatal to the internal liberty of all. The same causes
which have rendered the old world the Theatre of incessant wars, &
have banished liberty from the face of it, w
soon produce the
same effects here. The weakness & jealousy of the small States w
quickly introduce some regular military force ag
st
sudden
danger from their powerful neighbours. The example w
be
followed by others, and w
soon become universal. In time of
actual war, great discretionary powers are constantly given to the
Executive Magistrate. Constant apprehension of war, has the same tendency
to render the head too large for the body. A standing military force, with
an overgrown Executive will not long be safe companions to liberty. The
means of defence ag
st
foreign danger, have been always the
instruments of tyranny at home. Among the Romans it was a standing maxim
to excite a war, whenever a revolt was apprehended. Throughout all Europe,
the armies kept up under the pretext of defending, have enslaved the
people. It is perhaps questionable, whether the best concerted system of
absolute power in Europe c
maintain itself, in a situation,
where no alarms of external danger c
tame the people to the
domestic yoke. The insular situation of G. Britain was the principal cause
of her being an exception to the general fate of Europe. It has rendered
less defence necessary, and admitted a kind of defence w
ch
not be used for the purpose of oppression.—These consequences he
conceived ought to be apprehended
[pg 266]
whether the States should run into a
total separation from each other, or sh
enter into partial
confederacies. Either event w
be truly deplorable; & those
who might be accessary to either, could never be forgiven by their
Country, nor by themselves.
[119]
Hamilton
observed that individuals forming political Societies modify their rights
differently with regard to suffrage. Examples of it are found in all the
States. In all of them some individuals are deprived of the right
altogether, not having the requisite qualification of property. In some of
the States the right of suffrage is allowed in some cases and refused in
others. To vote for a member in one branch, a certain quantum of property,
to vote for a member in another branch of the Legislature, a higher
quantum of property is required. In like manner States may modify their
right of suffrage differently, the larger exercising a larger, the smaller
a smaller share of it. But as States are a collection of individual men
which ought we to respect most, the rights of the people composing them,
or of the artificial beings resulting from the composition. Nothing could
be more preposterous or absurd than to sacrifice the former to the latter.
It has been s
that if the smaller States renounce their
equality
they renounce at the same time their
liberty
. The truth is it is a
contest for power, not for liberty. Will the men composing the small
States be less free than those composing the larger. The State of Delaware
having 40,000 souls will
lose power
, if she has 1/10 only of the
votes allowed to P
having 400,000: but will the people of Del:
be less free
, if each citizen has an equal vote with each citizen
of P
He admitted that common residence within the same State
would produce a certain degree of attachment; and that this principle
might have a certain influence
[pg 267]
in public affairs. He thought
however that this might by some precautions be in a great measure
excluded: and that no material inconvenience could result from it, as
there could not be any ground for combination among the States whose
influence was most dreaded. The only considerable distinction of
interests, lay between the carrying & non-carrying States, which
divides instead of uniting the largest States. No considerable
inconvenience had been found from the division of the State of N. York
into different districts of different sizes.
[119]
From
this date he was absent till the —— of ——.—Madison's
Note.
Some of the consequences of a dissolution of the Union, and the
establishment of partial confederacies, had been pointed out. He would add
another of a most serious nature. Alliances will immediately be formed
with different rival & hostile nations of Europes, who will foment
disturbances among ourselves, and make us parties to all their own
quarrels. Foreign Nations having American dominion are & must be
jealous of us. Their representatives betray the utmost anxiety for our
fate, & for the result of this meeting, which must have an essential
influence on it.—It had been said that respectability in the eyes of
foreign Nations was not the object at which we aimed; that the proper
object of republican Government was domestic tranquillity & happiness.
This was an ideal distinction. No Government could give us tranquillity
& happiness at home, which did not possess sufficient stability and
strength to make us respectable abroad. This was the critical moment for
forming such a Government. We should run every risk in trusting to future
amendments. As yet we retain the habits of union. We are weak &
sensible of our weakness. Henceforward the motives will become feebler,
and the difficulties greater. It is a miracle that we were now here
exercising our tranquil & free deliberations on the subject. It would
be madness to trust to future
[pg 268]
miracles. A thousand causes must
obstruct a reproduction of them.
Pierce considered the equality of votes under the
Confederation as the great source of the public difficulties. The members
of Cong
were advocates for local advantages. State
distinctions must be sacrificed as far as the general good required, but
without destroying the States. Tho' from a small State he felt himself
a Citizen of the U. S.
Gerry, urged that we never were independent States, were not
such now, & never could be even on the principles of the
Confederation. The States & the advocates for them were intoxicated
with the idea of their
sovereignty
. He was a member of Congress at
the time the federal articles were formed. The injustice of allowing each
State an equal vote was long insisted on. He voted for it, but it was ag
st
his Judgment, and under the pressure of public danger, and the obstinacy
of the lesser States. The present Confederation he considered as
dissolving. The fate of the Union will be decided by the Convention. If
they do not agree on something, few delegates will probably be appointed
to Cong
. If they do Cong
will probably be kept up
till the new System should be adopted. He lamented that instead of coming
here like a band of brothers, belonging to the same family, we seemed to
have brought with us the spirit of political negotiators.
L. Martin remarked that the language of the States being
sovereign
& independent
, was once familiar & understood; though it
seemed now so strange & obscure. He read those passages in the
articles of Confederation, which describe them in that language.
On the question as moved by M
Lansing. Shall the word "not" be
struck out.
Mass
ts
no. Con
ay. N. Y. ay.
N. J. ay. P
no. Del. ay. M
div
no. N. C. no. S. C. no. Geo. no.
[pg 269]
On the motion to agree to the clause as reported, "that the rule of
suffrage in the 1
st
branch ought not to be according to that
established by the Articles of the Confederation
Mass. ay. Con
no. N. Y. no. N. J. no.
ay. Del. no. M
div
. V
ay.
N. C. ay. S. C. ay. Geo. ay.
Doc
Johnson & M
Elseworth moved to postpone
the residue of the clause, & take up y
8 Resol:
On question
Mas. no. Con
ay. N. Y. ay. N. J. ay.
ay. Del. no. M
ay. V
ay.
N. C. ay. S. C. ay. Geo. ay.
Elseworth moved that the rule of suffrage in the 2
branch be the same with that established by the articles of Confederation.
"He was not sorry on the whole he said that the vote just passed, had
determined against this rule in the first branch. He hoped it would become
a ground of compromise with regard to the 2
branch. We were
partly national; partly federal. The proportional representation in the
first branch was conformable to the national principle & would secure
the large States ag
st
the small. An equality of voices was
conformable to the federal principle and was necessary to secure the Small
States ag
st
the large. He trusted that on this middle ground a
compromise would take place. He did not see that it could on any other.
And if no compromise should take place, our meeting would not only be in
vain but worse than in vain. To the Eastward he was sure Mass
ts
was the only State that would listen to a proposition for excluding the
States as equal political Societies, from an equal voice in both branches.
The others would risk every consequence rather than part with so dear a
right. An attempt to deprive them of it, was at once cutting the body of
America in two, and as he supposed would be the case, somewhere about this
part of it.
[pg 270]
The large States he conceived would notwithstanding the equality of votes,
have an influence that would maintain their superiority. Holland, as had
been admitted (by M
Madison) had, notwithstanding a like
equality in the Dutch Confederacy, a prevailing influence in the public
measures. The power of self defence was essential to the small States.
Nature had given it to the smallest insect of the creation. He could never
admit that there was no danger of combinations among the large States.
They will like individuals find out and avail themselves of the advantage
to be gained by it. It was true the danger would be greater if they were
contiguous and had a more immediate common interest. A defensive
combination of the small States was rendered more difficult by their great
number. He would mention another consideration of great weight. The
existing confederation was founded on the equality of the States in the
article of suffrage: was it meant to pay no regard to this antecedent
plighted faith. Let a strong Executive, a Judiciary & Legislative
power be created, but Let not too much be attempted; by which all may be
lost. He was not in general a half-way man, yet he preferred doing half
the good we could, rather than do nothing at all. The other half may be
added, when the necessity shall be more fully experienced.
[120]
[120]
In King's
Notes another speech of Madison's is given after Ellsworth's:
Madison.
One Gentleman from Connecticut has proposed doing
as much as is prudent now, leaving future amendments to Posterity,—this
is a dangerous doctrine. The Defects of the Amphictionic League were
acknowledged, but were reformed. The Netherlands have four times
attempted to make amendments in their Confederation, but have failed
in each attempt. The Fear of innovation, the hue & Cry in favour
of the Liberty of the People will as they have done prevent the
necessary Reforms. If the States have equal Votes & influence in
the Senate we shall be in the utmost danger, the minority of the
People will govern the majority. Delaware during the late war
opposed and defeated an Embargo, to which twelve States had agreed,
and continued to supply the enemy with Provisions in time of war."—King's
Life and Times of Rufus King
, i., 612.
[pg 271]
Baldwin
[121]
could have wished that
the powers of the General Legislature had been defined, before the mode of
constituting it had been agitated. He should vote against the motion of M
Elseworth, tho. he did not like the Resolution as it stood in the Report
of the Committee of the whole. He thought the second branch ought to be
the representation of property, and that in forming it therefore some
reference ought to be had to the relative wealth of their Constituents,
and to the principles on which the Senate of Mass
ts
was
constituted. He concurred with those who thought it w
be
impossible for the Gen
Legislature to extend its cares to the
local matters of the States.
[122]
Adj
[121]
"Mr.
Baldwin is a Gentleman of superior abilities, and joins in a public
debate with great art and eloquence. Having laid the foundation of a
compleat classical education at Harvard College, he pursues every
other study with ease. He is well acquainted with Books and
Characters, and has an accommodating turn of mind, which enables him
to gain the confidence of Men, and to understand them. He is a
practising Attorney in Georgia, and has been twice a Member of
Congress. Mr. Baldwin is about 38 years of age."—Pierce's
Notes
Am. Hist. Rev.
, iii., 333.
[122]
According to Yates, after Baldwin spoke:
"Mr. Madison. I would always exclude inconsistent principles in
framing a system of government. The difficulty of getting its
defects amended are great and sometimes insurmountable. The Virginia
state government was the first which was made, and though its
defects are evident to every person, we cannot get it amended. The
Dutch have made four several attempts to amend their system without
success. The few alterations made in it were by tumult and faction,
and for the worse. If there was real danger, I would give the
smaller states the defensive weapons—But there is none from
that quarter. The great danger to our general government is the
great southern and northern interests of the continent, being
opposed to each other. Look to the votes in congress, and most of
them stand divided by the geography of the country, not according to
the size of the states.
"Suppose the first branch granted money, may not the second branch,
from state views, counteract the first? In congress, the single
state of Delaware prevented an embargo, at the time that all the
other states thought it absolutely necessary for the support of the
army. Other powers, and those very essential, besides the
legislative, will be given to the second branch—such as the
negativing all state laws. I would compromise on this question, if I
could do it on correct principles, but otherwise not—if the
old fabric of the confederation must be the groundwork of the new,
we must fall."—Yates,
Secret Proceedings
, etc., 189.
[pg 272]
Saturday June 30. 1787. in Convention
Brearly moved that the Presid
write to the
Executive of N. Hampshire, informing it that the business depending
before the Convention was of such a nature as to require the immediate
attendance of the deputies of that State. In support of his motion he
observed that the difficulties of the subject and the diversity of
opinions called for all the assistance we could possibly obtain, (it was
well understood that the object was to add N. Hampshire to the n
of States opposed to the doctrine of proportional representation, which it
was presumed from her relative size she must be adverse to).
Patterson seconded the motion.
Rutlidge could see neither the necessity nor propriety of
such a measure. They are not unapprized of the meeting, and can attend if
they choose. Rho. Island might as well be urged to appoint & send
deputies. Are we to suspend the business until the deputies arrive? if we
proceed he hoped all the great points would be adjusted before the letter
could produce its effect.
King, said he had written more than once as a private
correspondent, & the answers gave him every reason to expect that
State would be represented very shortly, if it sh
be so at
all. Circumstances of a personal nature had hitherto prevented it. A
letter c
have no effect.
Wilson wished to know whether it would be consistent with
the rule or reason of secrecy, to
[pg 273]
communicate to N. Hampshire
that the business was of such a nature as the motion described. It w
spread a great alarm. Besides he doubted the propriety of soliciting any
State on the subject; the meeting being merely voluntary—on motion
of M
Brearly Mas
ts
no. Con
no.
N. Y. ay. N. J. ay. P
not on y
floor. Del. not on floor. M
div
no.
N. C. no. S. C. no. Geo. not on floor.
The motion of M
Elseworth resumed for allowing each State an
equal vote in y
branch.
Wilson did not expect such a motion after the establishment
of y
contrary principle in the 1
st
branch; and
considering the reasons which would oppose it, even if an equal vote had
been allowed in the 1
st
branch. The Gentleman from Connecticut
(M
Elseworth) had pronounced that if the motion should not be
acceded to, of all the States North of Pen
one only would
agree to any Gen
Government. He entertained more favorable
hopes of Conn
and of the other Northern States. He hoped the
alarms exceeded their cause, and that they would not abandon a Country to
which they were bound by so many strong and endearing ties. But should the
deplored event happen, it would neither stagger his sentiments nor his
duty. If the minority of the people of America refuse to coalesce with the
majority on just and proper principles, if a separation must take place,
it could never happen on better grounds. The votes of yesterday ag
st
the just principle of representation, were as 22 to 90 of the people of
America. Taking the opinions to be the same on this point, and he was sure
if there was any room for change, it could not be on the side of the
majority, the question will be shall less than 1/4 of the U. States
withdraw themselves from the Union; or shall more than 3/4 renounce the
inherent, indisputable and unalienable rights of men, in favor of the
artificial systems of States. If issue must be joined, it was on this
[pg 274]
point he would chuse to join it. The Gentleman from Connecticut in
supposing that the preponderancy secured to the majority in the 1
st
branch had removed the objections to an equality of votes in the 2
branch for the security of the minority, narrowed the case extremely. Such
an equality will enable the minority to controul in all cases whatsoever,
the sentiments and interests of the majority. Seven States will controul
six: Seven States, according to the estimates that had been used, composed
24/90 of the whole people. It would be in the power then of less than 1/3
to overrule 2/3 whenever a question should happen to divide the States in
that manner. Can we forget for whom we are forming a Government? Is it for
men
, or for the imaginary beings called
States
? Will our
honest Constituents be satisfied with metaphysical distinctions? Will
they, ought they to be satisfied with being told, that the one-third
compose the greater number of States? The rule of suffrage ought on every
principle to be the same in the 2
as in the 1
st
branch. If the Government be not laid on this foundation, it can be
neither solid nor lasting. Any other principle will be local, confined
& temporary. This will expand with the expansion, and grow with the
growth of the U. States.—Much has been said of an imaginary
combination of three States. Sometimes a danger of monarchy, sometimes of
aristocracy has been charged on it. No explanation however of the danger
has been vouchsafed. It would be easy to prove both from reason &
history that rivalships would be more probable than coalitions; and that
there are no coinciding interests that could produce the latter. No answer
has yet been given to the observations of (M
Madison) on this
subject. Should the Executive Magistrate be taken from one of the large
States would not the other two be thereby thrown into the scale with the
other States? Whence then the danger
[pg 275]
of monarchy? Are the
people of the three large States more aristocratic than those of the small
ones? Whence then the danger of aristocracy from their influence? It is
all a mere illusion of names. We talk of States, till we forget what they
are composed of. Is a real & fair majority, the natural hot-bed of
aristocracy? It is a part of the definition of this species of Gov
or rather of tyranny, that the smaller number governs the greater. It is
true that a majority of States in the 2
branch cannot carry a
law ag
st
a majority of the people in the 1
st
. But
this removes half only of the objection. Bad Govern
ts
are of
two sorts. 1. that which does too little. 2. that which does too much:
that which fails thro' weakness; and that which destroys thro'
oppression. Under which of these evils do the U. States at present groan?
Under the weakness and inefficiency of its Govern
. To remedy
this weakness we have been sent to this Convention. If the motion should
be agreed to, we shall leave the U. S. fettered precisely as
heretofore; with the additional mortification of seeing the good purposes
of y
fair representation of the people in the 1
st
branch, defeated in the 2
. Twenty four will still controul
sixty six. He lamented that such a disagreement should prevail on the
point of representation, as he did not foresee that it would happen on the
other point most contested, the boundary between the Gen
the local authorities. He thought the States necessary & valuable
parts of a good system.
Elseworth. The capital objection of M
Wilson,
"that the minority will rule the majority" is not true. The power is given
to the few to save them from being destroyed by the many. If an equality
of votes had been given to them in both branches, the objection might have
had weight. Is it a novel thing that the few should have a check on the
many? Is it not the case in the British Constitution the
[pg 276]
wisdom of which so many gentlemen have united in applauding? Have not the
House of Lords, who form so small a proportion of the nation a negative on
the laws, as a necessary defence of their peculiar rights ag
st
the encroachm
ts
of the Commons. No instance of a Confederacy
has existed in which an equality of voices has not been exercised by the
members of it. We are running from one extreme to another. We are razing
the foundations of the building, when we need only repair the roof. No
salutary measure has been lost for want of
a majority of the States
to favor it. If security be all that the great States wish for the 1
st
branch secures them. The danger of combinations among them is not
imaginary. Altho' no particular abuses could be foreseen by him, the
possibility of them would be sufficient to alarm him. But he could easily
conceive cases in which they might result from such combinations. Suppose
that in pursuance of some commercial treaty or arrangement, three or four
free ports & no more were to be established would not combinations be
formed in favor of Boston—Philad
& some port of the
Chesapeak? A like concert might be formed in the appointment of the Great
officers. He appealed again to the obligations of the federal pact which
was still in force, and which had been entered into with so much
solemnity; persuading himself that some regard would still be paid to the
plighted faith under which each State small as well as great, held an
equal right of suffrage in the general Councils. His remarks were not the
result of partial or local views. The State he represented (Connecticut)
held a middle rank.
Madison did justice to the able and close reasoning of M
E. but must observe that it did not always accord with itself. On another
occasion, the large States were described by him as the Aristocratic
States, ready to oppress the small. Now the Small
[pg 277]
are the House of
Lords requiring a negative to defend them ag
st
the more
numerous Commons. M
E. had also erred in saying that no
instance had existed in which confederated States had not retained to
themselves a perfect equality of suffrage. Passing over the German system
in which the K. of Prussia has nine voices, he reminded M
E.
of the Lycian Confederacy, in which the component members had votes
proportioned to their importance, and which Montesquieu recommends as the
fittest model for that form of Government. Had the fact been as stated by
E. it would have been of little avail to him, or rather
would have strengthened the arguments ag
st
him; the History
& fate of the several confederacies modern as well as Antient,
demonstrating some radical vice in their structure. In reply to the appeal
of M
E. to the faith plighted in the existing federal compact,
he remarked that the party claiming from others an adherence to a common
engagement ought at least to be guiltless itself of a violation. Of all
the States however Connecticut was perhaps least able to urge this plea.
Besides the various omissions to perform the stipulated acts from which no
State was free, the Legislature of that State had by a pretty recent vote,
positively refused
to pass a law for complying with the
Requisitions of Cong
, and had transmitted a copy of the vote
to Cong
. It was urged, he said, continually that an equality
of votes in the 2
branch was not only necessary to secure the
small, but would be perfectly safe to the large ones whose majority in the
st
branch was an effectual bulwark. But notwithstanding this
apparent defence, the majority of States might still injure the majority
of people. 1. they could
obstruct
the wishes and interests of the
majority. 2. they could
extort
measures repugnant to the wishes
& interest of the Majority. 3. they could
impose
measures
adverse thereto; as the 2
[pg 278]
branch will prob[~l]y
exercise some great powers, in which the 1
st
will not
participate. He admitted that every peculiar interest whether in any class
of Citizens, or any description of States, ought to be secured as far as
possible. Wherever there is danger of attack there ought to be given a
Constitutional power of defence. But he contended that the States were
divided into different interests not by their difference of size, but by
other circumstances; the most material of which resulted partly from
climate, but principally from the effects of their having or not having
slaves. These two causes concurred in forming the great division of
interests in the U. States. It did not lie between the large & small
States: It lay between the Northern & Southern. And if any defensive
power were necessary, it ought to be mutually given to these two
interests. He was so strongly impressed with this important truth that he
had been casting about in his mind for some expedient that would answer
the purpose. The one which had occurred was that instead of proportioning
the votes of the States in both branches, to their respective numbers of
inhabitants computing the slaves in the ratio of 5 to 3, they should be
represented in one branch according to the number of free inhabitants
only; and in the other according to the whole n
counting the
slaves as free. By this arrangement the Southern Scale would have the
advantage in one House, and the Northern in the other. He had been
restrained from proposing this expedient by two considerations: one was
his unwillingness to urge any diversity of interests on an occasion where
it is but too apt to arise of itself—the other was, the inequality
of powers that must be vested in the two branches, and which w
destroy the equilibrium of interests.
Elseworth assured the House that whatever might be thought
of the Representatives of Connecticut
[pg 279]
the State was
entirely federal in her disposition. He appealed to her great exertions
during the war, in supplying both men & money. The muster rolls would
show she had more troops in the field than Virg
. If she had
been Delinquent, it had been from inability, and not more so than other
States.
Sherman. M
Madison had animadverted on the
delinquency of the States, when his object required him to prove that the
Constitution of Cong
was faulty. Cong
is not to
blame for the faults of the States. Their measures have been right, and
the only thing wanting has been, a further power in Cong
to
render them effectual.
Davy was much embarrassed and wished for explanations. The
Report of the Committee allowing the Legislatures to choose the Senate,
and establishing a proportional representation in it, seemed to be
impracticable. There will according to this rule be ninety members in the
outset, and the number will increase as new States are added. It was
impossible that so numerous a body could possess the activity and other
qualities required in it. Were he to vote on the comparative merits of the
report as it stood, and the amendment, he should be constrained to prefer
the latter. The appointment of the Senate by electors chosen by the people
for that purpose was he conceived liable to an insuperable difficulty. The
larger Counties or districts thrown into a general district, would
certainly prevail over the smaller Counties or Districts, and merit in the
latter would be excluded altogether. The report therefore seemed to be
right in referring the appointment to the Legislatures, whose agency in
the general System did not appear to him objectionable as it did to some
others. The fact was that the local prejudices & interests which could
not be denied to exist, would find their way into the
[pg 280]
national Councils
whether the Representatives should be chosen by the Legislatures or by the
people themselves. On the other hand if a proportional representation was
attended with insuperable difficulties, the making the Senate the
Representative of the States, looked like bringing us back to Cong
again, and shutting out all the advantages expected from it. Under this
view of the subject he could not vote for any plan for the Senate yet
proposed. He thought that in general there were extremes on both sides. We
were partly federal, partly national in our Union, and he did not see why
the Gov
might not in some respects operate on the States, in
others on the people.
Wilson admitted the question concerning the number of
Senators, to be embarrassing. If the smallest States be allowed one, and
the others in proportion, the Senate will certainly be too numerous. He
looked forward to the time when the smallest States will contain 100,000
souls at least. Let there be then one Senator in each for every 100,000
souls and let the States not having that n
of inhabitants be
allowed one. He was willing himself to submit to this temporary concession
to the small States; and threw out the idea as a ground of compromise.
Doc
Franklin. The diversity of opinions turns on two points.
If a proportional representation takes place, the small States contend
that their liberties will be in danger. If an equality of votes is to be
put in its place, the large States say their money will be in danger. When
a broad table is to be made, and the edges of planks do not fit, the
artist takes a little from both, and makes a good joint. In like manner
here both sides must part with some of their demands, in order that they
may join in some accommodating proposition. He had prepared one which he
would read, that it might lie on the table
[pg 281]
for consideration.
The proposition was in the words following
"That the Legislatures of the several States shall choose & send an
equal number of Delegates, namely —— who are to compose the
branch of the General Legislature—
That in all cases or questions wherein the Sovereignty of individual
States may be affected, or whereby their authority over their own
Citizens may be diminished, or the authority of the General Government
within the several States augmented, each State shall have equal
suffrage.
That in the appointment of all Civil officers of y
Gen
Gov
in the election of whom the 2
branch may by
the Constitution have part, each State shall have equal suffrage.
That in fixing the Salaries of such Officers, and in all allowances for
public services, and generally in all appropriations & dispositions
of money to be drawn out of the general Treasury; and in all laws for
supplying that Treasury, the Delegates of the several States shall have
suffrage in proportion to the Sums which their respective States do
actually contribute to the Treasury." Where a ship had many owners this
was the rule of deciding on her expedition. He had been one of the
Ministers from this Country to France during the joint war and w
have been very glad if allowed a vote in distributing the money to carry
it on.
King observed that the simple question was whether each
State should have an equal vote in the 2
branch; that it must
be apparent to those Gentlemen who liked neither the motion for this
equality, nor the report as it stood, that the report was as susceptible
of melioration as the motion; that a reform would be nugatory &
nominal only if we should make another Congress of the proposed Senate:
that if the adherence to an equality of votes
[pg 282]
was fixed &
unalterable, there could not be less obstinacy on the other side, &
that we were in fact cut asunder already, and it was in vain to shut our
eyes against it: that he was however filled with astonishment that if we
were convinced that every
man
in America was secured in all his
rights, we should be ready to sacrifice this substantial good to the
Phantom of
State
sovereignty: that his feelings were more harrowed
& his fears more agitated for his Country than he could express, that
he conceived this to be the last opportunity of providing for its liberty
& happiness: that he could not therefore but repeat his amazement that
when a just govern
founded on a fair representation of the
people
of America was within our reach, we should renounce the blessing, from an
attachment to the ideal freedom & importance of
States
: that
should this wonderful illusion continue to prevail, his mind was prepared
for every event, rather than to sit down under a Gov
founded
in a vicious principle of representation, and which must be as short lived
as it would be unjust. He might prevail on himself to accede to some such
expedient as had been hinted by M
Wilson; but he never could
listen to an equality of votes as proposed in the motion.
Dayton. When assertion is given for proof, and terror
substituted for argument, he presumed they would have no effect however
eloquently spoken. It should have been shewn that the evils we have
experienced have proceeded from the equality now objected to; and that the
seeds of dissolution for the State Governments are not sown in the Gen
Government. He considered the system on the table as a novelty, an
amphibious monster; and was persuaded that it never would be rec
by the people. M
Martin w
never confederate if it
could not be done on just principles.
Madison would acquiesce in the concession
[pg 283]
hinted by M
Wilson, on condition that a due independence
should be given to the Senate. The plan in its present shape makes the
Senate absolutely dependent on the States. The Senate therefore is only
another edition of Cong
. He knew the faults of that Body &
had used a bold language ag
st
it. Still he would preserve the
State rights, as carefully as the trials by jury.
Bedford, contended that there was no middle way between a
perfect consolidation and a mere confederacy of the States. The first is
out of the question, and in the latter they must continue if not
perfectly, yet equally sovereign. If political Societies possess ambition
avarice, and all the other passions which render them formidable to each
other, ought we not to view them in this light here? Will not the same
motives operate in America as elsewhere? If any gentleman doubts it let
him look at the votes. Have they not been dictated by interest, by
ambition? Are not the large States evidently seeking to aggrandize
themselves at the expense of the small? They think no doubt that they have
right on their side, but interest had blinded their eyes. Look at Georgia.
Though a small State at present, she is actuated by the prospect of soon
being a great one. S. Carolina is actuated both by present interest
& future prospects. She hopes too to see the other States cut down to
her own dimensions. N. Carolina has the same motives of present &
future interest. Virg
follows. Mary
is not on that
side of the Question. Pen
has a direct and future interest.
Mass
ts
has a decided and palpable interest in the part she
takes. Can it be expected that the small States will act from pure
disinterestedness. Look at G. Britain. Is the Representation there less
unequal? But we shall be told again that that is the rotten part of the
Constitution. Have not the boroughs however held fast their constitutional
rights?
[pg 284]
And are we to act with greater purity than the rest of mankind. An exact
proportion in the Representation is not preserved in any one of the
States. Will it be said that an inequality of power will not result from
an inequality of votes. Give the opportunity, and ambition will not fail
to abuse it. The whole History of mankind proves it. The three large
States have a common interest to bind them together in commerce. But
whether a combination as we suppose, or a competition as others suppose,
shall take place among them, in either case, the small States must be
ruined. We must like Solon make such a Govern
as the people
will approve. Will the smaller States ever agree to the proposed
degradation of them. It is not true that the people will not agree to
enlarge the powers of the present Cong
. The language of the
people has been that Cong
ought to have the power of
collecting an impost, and of coercing the States where it may be
necessary. On The first point they have been explicit &, in a manner,
unanimous in their declarations. And must they not agree to this &
similar measures if they ever mean to discharge their engagements. The
little States are willing to observe their engagements, but will meet the
large ones on no ground but that of the Confederation. We have been told
with a dictatorial air that this is the last moment for a fair trial in
favor of a Good Governm
. It will be the last indeed if the
propositions reported from the Committee go forth to the people. He was
under no apprehensions. The Large States dare not dissolve the
Confederation. If they do the small ones will find some foreign ally of
more honor and good faith, who will take them by the hand and do them
justice. He did not mean by this to intimidate or alarm. It was a natural
consequence, which ought to be avoided by enlarging the federal powers not
annihilating the federal system. This is what the
[pg 285]
people expect. All
agree in the necessity of a more efficient Gov
and why not
make such an one as they desire.
Elseworth. Under a National Gov
he should
participate in the National Security, as remarked by (M
King)
but that was all. What he wanted was domestic happiness. The Nat
Gov
could not descend to the local objects on which this
depended. It could only embrace objects of a general nature. He turned his
eyes therefore for the preservation of his rights to the State Gov
ts
From these alone he could derive the greatest happiness he expects in this
life. His happiness depends on their existence, as much as a new born
infant on its mother for nourishment. If this reasoning was not
satisfactory, he had nothing to add that could be so.
King was for preserving the States in a subordinate degree,
and as far as they could be necessary for the purposes stated by M
Elseworth. He did not think a full answer had been given to those who
apprehended a dangerous encroachment on their jurisdictions. Expedients
might be devised as he conceived that would give them all the security the
nature of things would admit of. In the establish
of Societies
the Constitution was to the Legislature what the laws were to individuals.
As the fundamental rights of individuals are secured by express provisions
in the State Constitutions; why may not a like security be provided for
the Rights of States in the National Constitution. The articles of Union
between Engl
& Scotland furnish an example of such a
provision in favor of sundry rights of Scotland. When that Union was in
agitation, the same language of apprehension which has been heard from the
smaller States, was in the mouths of the Scotch patriots. The articles
however have not been violated and the Scotch have found an increase of
prosperity & happiness. He was aware that this will be
[pg 286]
called a mere
paper security
. He thought it a sufficient answer to
say that if fundamental articles of compact, are no sufficient defence
against physical power, neither will there be any safety ag
st
it if there be no compact. He could not sit down, without taking some
notice of the language of the honorable gentleman from Delaware (M
Bedford). It was not he that had uttered a dictatorial language. This
intemperance had marked the honorable Gentleman himself. It was not he who
with a vehemence unprecedented in that House, had declared himself ready
to turn his hopes from our common Country, and court the protection of
some foreign hand. This too was the language of the Honbl member himself.
He was grieved that such a thought had entered into his heart. He was more
grieved that such an expression had dropped from his lips. The gentleman c
only excuse it to himself on the score of passion. For himself whatever
might be his distress, he w
never court relief from a foreign
power.
Adjourned.
Monday July 2
in Convention.
On the question for allowing each State one vote in the second branch as
moved by M
Elseworth, Mass
ts
no. Con
ay.
N. Y. ay. N. J. ay. P
no. Del. ay.
ay. M
Jenifer being not present M
Martin alone voted V
no. N. C. no. S. C. no.
Geo. div
. M
Houston no. M
Baldwin
ay.
Pinkney thought an equality of votes in the 2
branch inadmissible. At the same time candor obliged him to admit that the
large States would feel a partiality for their own Citizens & give
them a preference, in appointments: that they might also find some common
points in their Commercial interests, and promote treaties favorable to
them. There
[pg 287]
is a real distinction [between] the Northern & South
interests. N. Carol
S. Carol: & Geo. in their
Rice & Indigo had a peculiar interest which might be sacrificed. How
then shall the larger States be prevented from administering the Gen
Gov
as they please, without being themselves unduly subjected
to the will of the smaller? By allowing them some but not a full,
proportion. He was extremely anxious that something should be done,
considering this as the last appeal to a regular experiment. Cong
have failed in almost every effort for an amendment of the federal System.
Nothing has prevented a dissolution of it, but the appointm
of
this Convention; & he could not express his alarms for the consequence
of such an event. He read his motion, to form the States into classes,
with an apportionment of Senators among them (see Art: 4, of his plan).
General Pinkney was willing the motion might be considered. He did not
entirely approve it. He liked better the motion of Doc
Franklin (which see Saturday June 30). Some Compromise seemed to be
necessary, the States being exactly divided on the question for an
equality of votes in the 2
branch. He proposed that a
Committee consisting of a member from each State should be appointed to
devise & report some compromise.
L. Martin had no objection to a commitment, but no
modifications whatever could reconcile the Smaller States to the least
diminution of their equal Sovereignty.
Sherman. We are now at a full stop, and nobody he supposed
meant that we sh
break up without doing something. A committee
he thought most likely to hit on some expedient.
[123]
Mr. Gov
Morris. thought a Com
adviseable as the
[pg 288]
Convention had been
equally divided. He had a stronger reason also. The mode of appointing the
branch tended he was sure to defeat the object of it. What
is this object? To check the precipitation, changeableness, and excesses
of the first branch. Every man of observation had seen in the democratic
branches of the State Legislatures, precipitation—in Congress
changeableness, in every department excesses ag
st
personal
liberty private property & personal safety. What qualities are
necessary to constitute a check in this case?
Abilities
and
virtue
are equally necessary in both branches. Something more then is now wanted,
1. the checking branch must have a personal interest in checking the other
branch, one interest must be opposed to another interest. Vices as they
exist, must be turned ag
st
each other. 2. It must have great
personal property, it must have the aristocratic spirit; it must love to
lord it thro' pride. Pride is indeed the great principle that actuates
both the poor & the rich. It is this principle which in the former
resists, in the latter abuses authority. 3. It should be independent. In
Religion the Creature is apt to forget its Creator. That it is otherwise
in Political Affairs, the late debates here are an unhappy proof. The
aristocratic body, should be as independent & as firm as the
democratic. If the members of it are to revert to a dependence on the
democratic choice, the democratic scale will preponderate. All the guards
contrived by America have not restrained the Senatorial branches of the
Legislatures from a servile complaisance to the democratic. If the 2
branch is to be dependent we are better without it. To make it
independent, it should be for life. It will then do wrong, it will be
said. He believed so; He hoped so. The Rich will strive to establish their
dominion & enslave the rest. They always did. They always will. The
proper security ag
st
them is
[pg 289]
to form them into a
separate interest. The two forces will then controul each other. Let the
rich mix with the poor and in a Commercial Country, they will establish an
Oligarchy. Take away commerce, and the democracy will triumph. Thus it has
been all the world over. So it will be among us. Reason tells us we are
but men: and we are not to expect any particular interference of Heaven in
our favor. By thus combining & setting apart, the aristocratic
interest, the popular interest will be combined ag
st
it. There
will be a mutual check and mutual security. 4. An independence for life,
involves the necessary permanency. If we change our measures nobody will
trust us: and how avoid a change of measures, but by avoiding a change of
men. Ask any man if he confides in Cong
if he confides in the
State of Pen
if he will lend his money or enter into contract?
He will tell you no. He sees no stability. He can repose no confidence. If
G. B. were to explain her refusal to treat with us, the same reasoning
would be employed.—He disliked the exclusion of the 2
branch from holding offices. It is dangerous. It is like the imprudent
exclusion of the military officers during the war, from civil
appointments. It deprives the Executive of the principal source of
influence. If danger be apprehended from the Executive what a left-handed
way is this of obviating it? If the son, the brother or the friend can be
appointed, the danger may be even increased, as the disqualified father
&c. can then boast of a disinterestedness which he does not possess.
Besides shall the best, the most able, the most virtuous citizens not be
permitted to hold offices? Who then are to hold them? He was also ag
st
paying the Senators. They will pay themselves if they can. If they can not
they will be rich and can do without it. Of such the 2
branch
ought to consist; and none but such can compose it if they
[pg 290]
are not to be paid—He contended that the Executive should appoint
the Senate & fill up vacancies. This gets rid of the difficulty in the
present question. You may begin with any ratio you please; it will come to
the same thing. The members being independ
& for life, may
be taken as well from one place as from another.—It should be
considered too how the scheme could be carried through the States. He
hoped there was strength of mind eno' in this House to look truth in
the face. He did not hesitate therefore to say that loaves & fishes
must bribe the Demagogues. They must be made to expect higher offices
under the general than the State Gov
ts
. A Senate for life will
be a noble bait. Without such captivating prospects, the popular leaders
will oppose & defeat the plan. He perceived that the 1
st
branch was to be chosen by the people of the States; the 2
by
those chosen by the people. Is not here a Gov
by the States, a
Govern
by Compact between Virg
in the 1
st
& 2
branch, Mass
ts
in the 1
st
branch &c. This is going back to mere treaty. It it no
Gov
at all. It is altogether dependent on the States, and will
act over again the part which Cong
has acted. A firm Govern
alone can protect our liberties. He fears the influence of the rich. They
will have the same effect here as elsewhere if we do not by such a Gov
keep them within their proper sphere. We should remember that the people
never act from reason alone. The Rich will take the advantage of their
passions & make these the instruments for oppressing them. The Result
of the Contest will be a violent aristocracy, or a more violent despotism.
The schemes of the Rich will be favored by the extent of the Country. The
people in such distant parts cannot communicate & act in concert. They
will be the dupes of those who have more knowledge & intercourse. The
only security ag
st
encroachments will be a select &
sagacious body of
[pg 291]
men, instituted to watch ag
st
them on all sides. He meant only
to hint these observations, without grounding any motion on them.
[123]
He had
just returned from N. Y. hav
left y
Convention a few days after it commenced business.—Madison's
Note.
Randolph favored the commitment though he did not expect
much benefit from the expedient. He animadverted on the warm & rash
language of M
Bedford on Saturday; reminded the small States
that if the large States should combine some danger of which he did not
deny there would be a check in the revisionary power of the Executive, and
intimated that in order to render this still more effectual, he would
agree that in the choice of an Executive each State should have an equal
vote. He was persuaded that two such opposite bodies as M
Morris had planned, could never long co-exist. Dissentions would arise, as
has been seen even between the Senate and H. of Delegates in Maryland,
appeals would be made to the people; and in a little time commotions would
be the result—He was far from thinking the large States could
subsist of themselves any more than the small; an avulsion would involve
the whole in ruin, and he was determined to pursue such a scheme of
Government as would secure us ag
st
such a calamity.
Strong was for the com̃itment; and hoped the mode of
constituting both branches would be referred. If they should be
established on different principles, contentions would prevail, and there
would never be a concurrence in necessary measures.
Doc
Williamson. If we do not concede on both sides, our
business must soon be at an end. He approved of the com̃itment,
supposing that as the Com
be a smaller body, a
compromise would be pursued with more coolness.
Wilson objected to the Committee, because it would decide
according to that very rule of voting which was opposed on one side.
Experience in
[pg 292]
Cong
had also proved the inutility of Committees consisting of
members from each State.
Lansing w
not oppose the commitment, though
expecting little advantage from it.
Madison opposed the Com̃itment. He had rarely seen any
other effect than delay from
such
Committees in Cong
Any scheme of compromise that could be proposed in the Committee might as
easily be proposed in the House; and the report of the Committee where it
contained merely the
opinion
of the Com
would neither
shorten the discussion, nor influence the decision of the House.
Gerry was for the commitm
. Something must be
done, or we shall disappoint not only America, but the whole world. He
suggested a consideration of the State we should be thrown into by the
failure of the Union. We should be without an Umpire to decide
controversies and must be at the mercy of events. What too is to become of
our treaties—what of our foreign debts, what of our domestic? We
must make concessions on both sides. Without these the Constitutions of
the several States would never have been formed.
On the question "for com̃iting," generally:
Mass
ts
ay. Con
ay. N. Y. ay.
N. J. no. P. ay. Del. no. M
ay. V
ay.
N. C. ay. S. C. ay. Geo. ay.
On the question for com̃iting it "to a member from each State,"
Mass
ts
ay. Con
ay. N. Y. ay.
N. J. ay. P
no. Del. ay. M
ay.
ay. N. C. ay. S. C. ay. Geo. ay.
The Com̃ittee elected by ballot, were M
Gerry, M
Elseworth, M
Yates, M
Patterson, D
Franklin, M
Bedford, M
Martin, M
Mason, M
Davy, M
Rutlidge, Mr. Baldwin.
That time might be given to the Com̃ittee, and to
[pg 293]
such as chose to attend to the celebrations on the anniversary of
Independence, the Convention adjourned till Thursday.
[124]
[124]
Tuesday
July 3, 1787
"The
grand committee
met. Mr. Gerry was chosen chairman.
"The committee proceeded to consider in what manner they should
discharge the business with which they were intrusted. By the
proceedings in the Convention, they were so equally divided on the
important question of
representation in the two branches
that the idea of a conciliatory adjustment must have been in
contemplation of the house in the appointment of this committee. But
still, how to effect this salutory purpose was the question. Many of
the members, impressed with the utility of a general government,
connected with it the indispensable necessity of a representation
from the states according to their numbers and wealth; while others,
equally tenacious of the rights of the states, would admit of no
other representation but such as
was strictly federal
, or, in
other words,
equality of suffrage
. This brought on a
discussion of the principles on which the house had divided, and a
lengthy recapitulation of the arguments advanced in the house in
support of these opposite propositions. As I had not openly
explained my sentiments on any former occasion on this question, but
constantly, in giving my vote,
showed my attachment to the
national government on federal principles, I took this occasion to
explain my motives
"These remarks gave rise to a motion of Dr. Franklin, which after
some modification was agreed to, and made the basis of the following
report of the Committee."—Yates,
Secret Proceedings
etc., 205. The report is given by Madison.
Hamilton, who had gone to New York, wrote to Washington under date
of July 3d:
"In my passage through the Jerseys, and since my arrival here, I
have taken particular pains to discover the public sentiment, and I
am more and more convinced that this is the critical opportunity for
establishing the prosperity of this country on a solid foundation. I
have conversed with men of information, not only in this city, but
from different parts of the State, and they agree that there has
been an astonishing revolution for the better in the minds of the
people.
"The prevailing apprehension among thinking men is, that the
Convention, from the fear of shocking the popular opinion, will not
go far enough. They seem to be convinced that a strong, well-mounted
government will better suit the popular palate than one of a
different complexion. Men in office are indeed taking all possible
pains to give an unfavorable impression of the Convention, but the
current seems to be moving strongly the other way.
"A plain but sensible man, in a conversation I had with him
yesterday, expressed himself nearly in this manner: The people begin
to be convinced that 'their excellent form of government,'
as they have been used to call it, will not answer their purpose,
and that they must substitute something not very remote from that
which they have lately quitted.
"These appearances, though they will not warrant a conclusion that
the people are yet ripe for such a plan as I advocate, yet serve to
prove that there is no reason to despair of their adopting one
equally energetic, if the Convention should think proper to propose
it. They serve to prove that we ought not to allow too much weight
to objections drawn from the supposed repugnance of the people to an
efficient constitution. I confess I am more and more inclined to
believe that former habits of thinking are regaining their influence
with more rapidity than is generally imagined.
"Not having compared ideas with you, sir, I cannot judge how far our
sentiments agree; but, as I persuade myself the genuineness of my
representations will receive credit with you, my anxiety for the
event of the deliberations of the Convention induces me to make this
communication of what appears to be the tendency of the public mind.
"I own to you, sir, that I am seriously and deeply distressed at the
aspect of the counsels which prevailed when I left Philadelphia. I
fear we shall let slip the golden opportunity of rescuing the
American empire from disunion, anarchy, and misery.
"No motley or feeble measure can answer the end, or will finally
receive the public support. Decision is true wisdom, and will not be
less reputable to the Convention than salutary to the community.
"I shall of necessity remain here ten or twelve days. If I have
reason to believe that my attendance at Philadelphia will not be
mere waste of time, I shall, after that period, rejoin the
Convention."—
Hamilton's Works
(Lodge).
Thursday July 5
th
in Convention
Gerry delivered in from the Committee appointed on Monday
last the following Report.
"The Committee to whom was referred the 8
th
[pg 294]
Resol. of the Report from the Committee of the Whole House, and so much
of the 7
th
as has not been decided on, submit the following
Report: That the subsequent propositions be recommended to the
[pg 295]
Convention on condition that both shall be generally adopted. I. that in
the 1
st
branch of the Legislature each of the States now in
the Union shall be allowed 1 member for every 40,000 inhabitants of the
description reported in the 7
th
Resolution of the Com
of the whole House: that each State not containing that number shall be
allowed 1 member: that all bills for raising or appropriating money, and
for fixing the salaries of the officers of the Govern
of the
U. States shall originate in the 1
st
branch of the
Legislature, and shall not be altered or amended by the 2
branch; and that no money shall be drawn from the public Treasury but in
pursuance of appropriations to be originated in the 1
st
branch. "II. That in the 2
branch each State shall have an
equal vote."
[125]
[125]
This
report was founded on a motion in the Com̃itte made by D
Franklin. It was barely acquiesced in by the members from the States
opposed to an equity of votes in the 2
branch and was
evidently considered by the members on the other side, as a gaining of
their point. A motion was made by M
Sherman. He acted in
the place of M
Elseworth who was kept away by
indisposition, in the Committee to the following effect "that each
State should have an equal vote in the 2
branch; provided
that no decision therein should prevail unless the majority of States
concurring should also comprise a majority of the inhabitants of the
U. States." This motion was not much deliberated on nor approved in
the Committee. A similar proviso had been proposed in the debates on
the articles of Confederation in 1777, to the articles giving certain
powers to "nine States." See Journals of Cong
for 1777, p.
462.—Madison Note.
Ghoram observed that as the report consisted of propositions
mutually conditional he wished to hear some explanations touching the
grounds on which the conditions were estimated.
Gerry. The Committee were of different opinions as well as
the Deputations from which the Com
were taken, and agreed to
the Report merely in order that some ground of accommodation might be
proposed. Those opposed to the equality of
[pg 296]
votes have only
assented conditionally; and if the other side do not generally agree will
not be under any obligation to support the Report.
Mr. Wilson thought the Committee had exceeded their powers.
Martin was for taking the question on the whole report.
Wilson was for a division of the question; otherwise it w
be a leap in the dark.
Madison could not regard the privilege of originating money
bills as any concession on the side of the small States. Experience proved
that it had no effect. If seven States in the upper branch wished a bill
to be originated, they might surely find some member from some of the same
States in the lower branch who would originate it. The restriction as to
amendments was of as little consequence. Amendments could be handed
privately by the Senate to members in the other house. Bills could be
negatived that they might be sent up in the desired shape. If the Senate
should yield to the obstinacy of the 1
st
branch the use of that
body as a check would be lost. If the 1
st
branch should yield
to that of the Senate, the privilege would be nugatory. Experience had
also shewn both in G. B. and the States having a similar regulation that
it was a source of frequent & obstinate altercations. These
considerations had produced a rejection of a like motion on a former
occasion when judged by its own merits. It could not therefore be deemed
any concession on the present, and left in force all the objections which
had prevailed ag
st
allowing each State an equal voice. He
conceived that the Convention was reduced to the alternative of either
departing from justice in order to conciliate the smaller States, and the
minority of the people of the U. S. or of displeasing these by justly
gratifying the larger States and the majority of the people. He could not
himself hesitate
[pg 297]
as to the option he ought to make. The Convention with justice & the
majority of the people on their side, had nothing to fear. With injustice
and the minority on their side they had every thing to fear. It was in
vain to purchase concord in the Convention on terms which would perpetuate
discord among their Constituents. The Convention ought to pursue a plan
which would bear the test of examination, which would be espoused &
supported by the enlightened and impartial part of America, & which
they could themselves vindicate and urge. It should be considered that
altho' at first many may judge of the system recom̃ended, by
their opinion of the Convention, yet finally all will judge of the
Convention by the System. The merits of the System alone can finally &
effectually obtain the public suffrage. He was not apprehensive that the
people of the small States would obstinately refuse to accede to a Gov
founded on just principles, and promising them substantial protection. He
could not suspect that Delaware would brave the consequences of seeking
her fortunes apart from the other States, rather than submit to such a Gov
much less could he suspect that she would pursue the rash policy of
courting foreign support, which the warmth of one of her representatives
(M
Bedford) had suggested, or if she sh
, that any
foreign nation w
be so rash as to hearken to the overture. As
little could he suspect that the people of N. Jersey notwithstanding
the decided tone of the gentlemen from that State, would choose rather to
stand on their own legs, and bid defiance to events, than to acquiesce
under an establishment founded on principles the justice of which they
could not dispute, and absolutely necessary to redeem them from the
exactions levied on them by the com̃erce of the neighbouring States.
A review of other States would prove that there was as little reason to
apprehend an inflexible opposition
[pg 298]
elsewhere. Harmony in the Convention
was no doubt much to be desired. Satisfaction to all the States, in the
first instance still more so. But if the principal States comprehending a
majority of the people of the U. S. should concur in a just &
judicious plan, he had the firmest hopes, that all the other States would
by degrees accede to it.
[126]
[126]
Yates,
and his colleague, Lansing, left the Convention July 5, despairing of
the result of its labors being satisfactory to them. Madison's
speech is the last one reported by Yates.—Yates,
Secret
Proceedings
, etc.
Butler said he could not let down his idea of the people, of
America so far as to believe they would from mere respect to the
Convention adopt a plan evidently unjust. He did not consider the
privilege concerning money bills as of any consequence. He urged that the
branch ought to represent the States according to their
property.
Gov
Morris, thought the form as well as the
matter of the Report objectionable. It seemed in the first place to render
amendments impracticable. In the next place, it seemed to involve a pledge
to agree to the 2
part if the 1
st
sh
be
agreed to. He conceived the whole aspect of it to be wrong. He came here
as a Representative of America; he flattered himself he came here in some
degree as a Representative of the whole human race; for the whole human
race will be affected by the proceedings of this Convention. He wished
gentlemen to extend their views beyond the present moment of time; beyond
the narrow limits of place from which they derive their political origin.
If he were to believe some things which he had heard, he should suppose
that we were assembled to truck and bargain for our particular States. He
can not descend to think that any gentlemen are really actuated by these
views. We must look forward to the effects of what we do. These alone
ought to guide us. Much has been said
[pg 299]
of the sentiments of
the people. They were unknown. They could not be known. All that we can
infer is that if the plan we recommend be reasonable & right; all Who
have reasonable minds and sound intentions will embrace it,
notwithstanding what had been said by some gentlemen. Let us suppose that
the larger States shall agree; and that the smaller refuse; and let us
trace the consequences. The opponents of the system in the smaller States
will no doubt make a party, and a noise for a time, but the ties of
interest, of kindred & of common habits which connect them with other
States will be too strong to be easily broken. In N. Jersey
particularly he was sure a great many would follow the sentiments of Pen
& N. York. This Country must be united. If persuasion does not
unite it, the sword will. He begged that this consideration might have its
due weight. The scenes of horror attending Civil commotion cannot be
described, and the conclusion of them will be worse than the term of their
continuance. The stronger party will then make traytors of the weaker; and
the Gallows & Halter will finish the work of the sword. How far
foreign powers would be ready to take part in the confusions he would not
say. Threats that they will be invited have it seems been thrown out. He
drew the melancholy picture of foreign intrusions as exhibited in the
History of Germany, & urged it as a standing lesson to other nations.
He trusted that the Gentlemen who may have hazarded such expressions, did
not entertain them till they reached their own lips. But returning to the
Report he could not think it in any respect calculated for the Public
good. As the 2
branch is now constituted, there will be
constant disputes & appeals to the States which will undermine the Gen
Government & controul & annihilate the 1
st
branch.
Suppose that the delegates from Mass
ts
& Rho I. in the
Upper House disagree, and
[pg 300]
that the former are outvoted. What
Results? they will immediately declare that their State will not abide by
the decision, and make such representations as will produce that effect.
The same may happen as to Virg
& other States. Of what
avail then will be what is on paper. State attachments, and State
importance have been the bane of this Country. We cannot annihilate; but
we may perhaps take out the teeth of the serpents. He wished our ideas to
be enlarged to the true interest of man, instead of being circumscribed
within the narrow compass of a particular Spot. And after all how little
can be the motive yielded by selfishness for such a policy. Who can say
whether he himself, much less whether his children, will the next year be
an inhabitant of this or that State.
Bedford. He found that what he had said as to the small
States being taken by the hand, had been misunderstood; and he rose to
explain. He did not mean that the small States would court the aid &
interposition of foreign powers. He meant that they would not consider the
federal compact as dissolved untill it should be so by the Acts of the
large States. In this case The consequences of the breach of faith on
their part, and the readiness of the small States to fulfill their
engagements, would be that foreign Nations having demands on this Country
would find it their interest to take the small States by the hand, in
order to do themselves justice. This was what he meant. But no man can
foresee to what extremities the small States may be driven by oppression.
He observed also in apology that some allowance ought to be made for the
habits of his profession in which warmth was natural & sometimes
necessary. But is there not an apology in what was said by (M
Gov
Morris) that the sword is to unite: by M
Ghorum that Delaware must be annexed to Penn
and N. Jersey
divided between
[pg 301]
Pen
and N. York. To hear such language without emotion,
would be to renounce the feelings of a man and the duty of a Citizen—As
to the propositions of the Committee, the lesser States have thought it
necessary to have a security somewhere. This has been thought necessary
for the Executive Magistrate of the proposed Gov
who has a
sort of negative on the laws; and is it not of more importance that the
States should be protected, than that the Executive branch of the Gov
sh
be protected. In order to obtain this, the smaller States
have conceded as to the constitution of the first branch, and as to money
bills. If they be not gratified by correspondent concessions as to the 2
branch is it to be supposed they will ever accede to the plan; and what
will be the consequence if nothing should be done? The condition of the U.
States requires that something should be immediately done. It will be
better that a defective plan should be adopted, than that none should be
recommended. He saw no reason why defects might not be supplied with
meetings 10, 15, or 20 years hence.
Elseworth said he had not attended the proceedings of the
Committee, but was ready to accede to the compromise they had reported.
Some compromise was necessary; and he saw none more convenient or
reasonable.
Williamson hoped that the expressions of individuals would
not be taken for the sense of their colleagues, much less of their States
which was not & could not be known. He hoped also that the meaning of
those expressions would not be misconstrued or exaggerated. He did not
conceive that (M
Gov
Morris) meant that the sword
ought to be drawn ag
st
the smaller States. He only pointed out
the probable consequences of anarchy in the U. S. A similar exposition
ought to be given of the expressions
[pg 302]
of (M
Ghorum). He was ready to hear the Report discussed; but thought the
propositions contained in it, the most objectionable of any he had yet
heard.
Patterson said that he had when the Report was agreed to in
the Com
reserved to himself the right of freely discussing it.
He acknowledged that the warmth complained of was improper; but he thought
the Sword & the Gallows little calculated to produce conviction. He
complained of the manner in which M
M and M
Gov
Morris had treated the small States.
Gerry. Tho' he had assented to the Report in the
Committee, he had very material objections to it. We were however in a
peculiar situation. We were neither the same Nation nor different Nations.
We ought not therefore to pursue the one or the other of these ideas too
closely. If no compromise should take place what will be the consequence.
A secession he foresaw would take place; for some gentlemen seem decided
on it: two different plans will be proposed; and the result no man could
foresee. If we do not come to some agreement among ourselves some foreign
sword will probably do the work for us.
Mason. The Report was meant not as specific propositions to
be adopted; but merely as a general ground of accommodation. There must be
some accommodation on this point, or we shall make little further progress
in the work. Accommodation was the object of the House in the appointment
of the Committee; and of the Committee in the Report they had made. And
however liable the Report might be to objections, he thought it preferable
to an appeal to the world by the different sides, as had been talked of by
some Gentlemen. It could not be more inconvenient to any gentleman to
remain absent from his private affairs, than it was for him; but he would
[pg 303]
bury his bones in this City rather than expose his Country to the
Consequences of a dissolution of the Convention without any thing being
done.
The 1
st
proposition in the report for fixing the representation
in the 1
st
branch, "one member for every 40,000 inhabitants,"
being taken up.
Gov
Morris objected to that scale of
apportionment. He thought property ought to be taken into the estimate as
well as the number of inhabitants. Life & liberty were generally said
to be of more value than property. An accurate view of the matter would
nevertheless prove that property was the main object of Society. The
Savage State was more favorable to liberty than the Civilized; and
sufficiently so to life. It was preferred by all men who had not acquired
a taste for property; it was only renounced for the sake of property which
could only be secured by the restraints of regular Government. These ideas
might appear to some new, but they were nevertheless just. If property
then was the main object of Gov
certainly it ought to be one
measure of the influence due to those who were to be affected by the
Govern
. He looked forward also to that range of New States
which w
soon be formed in the West. He thought the rule of
representation ought to be so fixed as to secure to the Atlantic States a
prevalence in the National Councils. The new States will know less of the
public interest than these, will have an interest in many respects
different, in particular will be little scrupulous of involving the
Community in wars the burdens & operations of which would fall chiefly
on the maritime States. Provision ought therefore to be made to prevent
the maritime States from being hereafter outvoted by them. He thought this
might be easily done by irrevocably fixing the number of representatives
which the Atlantic States should respectively have, and the number which
each new State will have.
[pg 304]
This w
not be unjust, as
the Western settlers w
previously know the conditions on which
they were to possess their lands. It would be politic as it would recom̃end
the plan to the present as well as future interest of the States which
must decide the fate of it.
Rutlidge. The gentleman last up had spoken some of his
sentiments precisely. Property was certainly the principal object of
Society. If numbers should be made the rule of representation, the
Atlantic States will be subjected to the Western. He moved that the first
proposition in the report be postponed in order to take up the following
viz "that the suffrages of the several States be regulated and
proportioned according to the sums to be paid towards the general revenue
by the inhabitants of each State respectively: that an apportionment of
suffrages, according to the ratio aforesaid shall be made and regulated at
the end of —— years from the 1
st
meeting of the
Legislature of the U. S., and at the end of every —— years but
that for the present, and until the period above mentioned, the suffrages
shall be for N. Hampshire —— for Massach
ts
—— &c.
Col. Mason said the case of new States was not unnoticed in the Committee;
but it was thought and he was himself decidedly of opinion that if they
made a part of the Union, they ought to be subject to no unfavorable
discriminations. Obvious considerations required it.
Randolph concurred with Col. Mason.
On Question on M
Rutlidges motion,
Mas
ts
no. Con
no. N. Y. no.
N. J. no. P
no. Del. no. Mary
no.
no. N. C. no. S. C. ay. Geo. not
on floor.
Friday July 6
th
in Convention
Gov
Morris moved to commit so much of the Report
as relates to "1 member for every 40,000
[pg 305]
inhabitants." His
view was that they might absolutely fix the number for each State in the
first instance; leaving the Legislature at liberty to provide for changes
in the relative importance of the States, and for the case of new States.
Wilson 2
ded
the motion; but with a view of
leaving the Committee under no implied shackles.
Ghorum apprehended great inconveniency from fixing directly
the number of Representatives to be allowed to each State. He thought the
number of Inhabitants the true guide; tho' perhaps some departure
might be expedient from the full proportion. The States also would vary in
their relative extent by separations of parts of the largest States. A
part of Virg
is now on the point of a separation. In the
province of Mayne a Convention is at this time deliberating on a
separation from Mas
ts
. In such events the number of
representatives ought certainly to be reduced. He hoped to see all the
States made small by proper divisions, instead of their becoming
formidable as was apprehended, to the Small States. He conceived that let
the Gen
Government be modified as it might, there would be a
constant tendency in the State Governm
ts
to encroach upon it:
it was of importance therefore that the extent of the States sh
be reduced as much & as fast as possible. The stronger the Gov
shall be made in the first instance the more easily will these divisions
be effected; as it will be of less consequence in the opinion of the
States whether they be of great or small extent.
Gerry did not think with his Colleague that the large States
ought to be cut up. This policy has been inculcated by the middling and
smaller States, ungenerously & contrary to the spirit of the
Confederation. Ambitious men will be apt to solicit needless divisions,
till the States be reduced to the size of Counties. If this policy should
still actuate the
[pg 306]
small States, the large ones cou'd not confederate safely with them;
but would be obliged to consult their safety by confederating only with
one another. He favored the commitment and thought that Representation
ought to be in the Combined ratio of numbers of Inhabitants and of wealth,
and not of either singly.
King wished the clause to be committed, chiefly in order to
detach it from the Report with which it had no connection. He thought also
that the Ratio of Representation proposed could not be safely fixed, since
in a century & a half our computed increase of population would carry
the number of representatives to an enormous excess; that y
number of inhabitants was not the proper index of ability & wealth;
that property was the primary object of Society; and that in fixing a
ratio this ought not to be excluded from the estimate.—With regard
to new States, he observed that there was something peculiar in the
business which had not been noticed. The U. S. were now admitted to
be proprietors of the Country N. West of the Ohio. Cong
by one of their ordinances have impoliticly laid it out into ten States,
and have made it a fundamental article of compact with those who may
become settlers, that as soon as the number in any one state shall equal
that of the smallest of the 13 original States, it may claim admission
into the Union. Delaware does not contain it is computed more than 35,000
souls, and for obvious reasons will not increase much for a considerable
time. It is possible then that if this plan be persisted in by Cong
10 new votes may be added, without a greater addition of inhabitants than
are represented by the single vote of Pen
. The plan as it
respects one of the new States is already irrevocable, the sale of the
lands having commenced, and the purchasers & settlers will immediately
become entitled to all the privileges of the compact.
[pg 307]
Butler agreed to the Commitment if the Committee were to be
left at liberty. He was persuaded that the more the subject was examined,
the less it would appear that the number of inhabitants would be a proper
rule of proportion. If there were no other objection the changeableness of
the standard would be sufficient. He concurred with those who thought some
balance was necessary between the old & the new States. He contended
strenuously that property was the only just measure of representation.
This was the great object of Govern
; the great cause of war;
the great means of carrying it on.
Pinkney saw no good reason for committing. The value of land
had been found on full investigation to be an impracticable rule. The
contributions of revenue including imports & exports must be too
changeable in their amount; too difficult to be adjusted; and too
injurious to the non-commercial States. The number of inhabitants appeared
to him the only just & practicable rule. He thought the blacks ought
to stand on an equality with the whites: But w
agree to the
ratio settled by Cong
. He contended that Cong
had
no right under the articles of Confederation to authorize the admission of
new States; no such case having been provided for.
Davy was for committing the clause in order to get at the
merits of the question arising on the Report. He seemed to think that
wealth or property ought to be represented in the 2
branch;
and numbers in the 1
st
branch.
On the Motion for committing as made by M
Gov
Morris,
Mass
ts
ay. Con
ay. N. Y. no.
N. J. no. P
ay. Del. no. M
div
ay. N. C. ay. S. C. ay. Geo. ay.
The members app
by Ballot were M
Gov
Morris, M
Gorham, M
Randolph, M
Rutlidge, M
King.
[pg 308]
Wilson signified that his view in agreeing to the com̃itm
was that the Com
might consider the propriety of adopting a
scale similar to that established by the Constitution of Mass
ts
which w
give an advantage to y
small States
without substantially departing from the rule of proportion.
Wilson & M
Mason moved to postpone the
clause relating to money bills in order to take up the clause relating to
an equality of votes in the Second branch.
On the question Mass
ts
no. Con
no. N. Y. ay.
N. J. ay. P
ay. Del. ay. M
ay.
ay. N. C. no. S. C. ay. Geo. ay.
The clause relating to equality of votes being under consideration,
Doc
Franklin observed that this question could not be properly
put by itself, the Com̃ittee having reported several propositions as
mutual conditions of each other. He could not vote for it if separately
taken, but should vote for the whole together.
Col. Mason perceived the difficulty & suggested a reference of the
rest of the Report to y
Committee just appointed, that the
whole might be brought into one view.
Randolph disliked y
reference to that Committee,
as it consisted of members from States opposed to the wishes of the
smaller States, and could not therefore be acceptable to the latter.
Martin & M
Jenifer moved to postpone the
clause till the Com
last appointed sh
report.
Madison observed that if the uncommitted part of the Report
was connected with the part just committed, it ought also to be committed;
if not connected, it need not be postponed till report should be made.
On the question for postponing, moved by M
Martin & M
Jenifer,—Con
N. J. Del. M
Geo. ay. P
N. C. S. C. no. Mass. N. Y.
divided.
[pg 309]
The 1
st
clause relating to the originating of money bills was
then resumed.
Govern
Morris was opposed to a restriction of
this right in either branch, considered merely in itself and as
unconnected with the point of representation in the 2
branch.
It will disable the 2
branch from proposing its own money
plans, and giving the people an opportunity of judging by comparison of
the merits of those proposed by the 1
st
branch.
Wilson could see nothing like a concession here on the part
of the smaller States. If both branches were to say yes or no, it was of
little consequence which should say yes or no first, which last. If either
was indiscriminately to have the right of originating, the reverse of the
Report, would he thought be most proper; since it was a maxim that the
least numerous body was the fittest for deliberation; the most numerous
for decision. He observed that this discrimination had been transcribed
from the British into several American constitutions. But he was persuaded
that on examination of the American experiments it would be found to be a
trifle light as air. Nor could he ever discover the advantage of it in the
Parliamentary history of G. Britain. He hoped if there was any advantage
in the privilege, that it would be pointed out.
Williamson thought that if the privilege were not common to
both branches it ought rather to be confined to the 2
as the
bills in that case would be more narrowly watched, than if they originated
with the branch having most of the popular confidence.
Mason. The consideration which weighed with the Committee
was that the 1
st
branch would be the immediate representatives
of the people, the 2
would not. Should the latter have the
power of giving away the people's money, they might soon forget the
source from whence they received it. We
[pg 310]
might soon have an
aristocracy. He had been much concerned at the principles which had been
advanced by some gentlemen, but had the satisfaction to find they did not
generally prevail. He was a friend to proportional representation in both
branches; but supposed that some points must be yielded for the sake of
accomodation.
Wilson. If he had proposed that the 2
branch
should have an independent disposal of public money, the observations of
(Col. Mason) would have been a satisfactory answer. But nothing could be
farther from what he had said. His question was how is the power of the 1
st
branch increased or that of the 2
diminished by giving the
proposed privilege to the former? Where is the difference, in which branch
it begins, if both must concur, in the end?
Gerry would not say that the concession was a sufficient one
on the part of the small States. But he could not but regard it in the
light of a concession. It w
make it a constitutional principle
that the 2
branch were not possessed of the Confidence of the
people in money matters, which w
lessen their weight &
influence. In the next place if the 2
branch were dispossessed
of the privilege, they w
be deprived of the opportunity which
their continuance in office 3 times as long as the 1
st
branch
would give them of making three successive essays in favor of a particular
point.
Pinkney thought it evident that the Concession was wholly on
one side, that of the large States, the privilege of originating money
bills being of no account.
Gov
Morris had waited to hear the good effects
of the restriction. As to the alarm sounded, of an aristocracy, his creed
was that there never was, nor ever will be a civilized Society without an
aristocracy. His endeavor was to keep it as much as possible from doing
mischief. The restriction if it has
[pg 311]
any real operation, will deprive us
of the services of the 2
branch in digesting & proposing
money bills of which it will be more capable than the 1
st
branch. It will take away the responsibility of the 2
branch,
the great security for good behavior. It will always leave a plea, as to
an obnoxious money bill that it was disliked, but could not be
constitutionally amended; nor safely rejected. It will be a dangerous
source of disputes between the two Houses. We should either take the
British Constitution altogether or make one for ourselves. The Executive
there has dissolved two Houses as the only cure for such disputes. Will
our Executive be able to apply such a remedy? Every law directly or
indirectly takes money out of the pockets of the people. Again What use
may be made of such a privilege in case of great emergency? Suppose an
Enemy at the door, and money instantly & absolutely necessary for
repelling him, may not the popular branch avail itself of this duress, to
extort concessions from the Senate destructive of the Constitution itself.
He illustrated this danger by the example of the Long Parliament's
exped
ts
for subverting the H. of Lords; concluding on the whole
that the restriction would be either useless or pernicious.
Doc
Franklin did not mean to go into a justification of the
Report, but as it had been asked what would be the use of restraining the
branch from medling with money bills, he could not but
remark that it was always of importance that the people should know who
had disposed of their money, & how it had been disposed of. It was a
maxim that those who feel, can best judge. This end would, he thought, be
best attained, if money affairs were to be confined to the immediate
representatives of the people. This was his inducement to concur in the
report. As to the danger or difficulty that might arise from a Negative in
the 2
where the people
[pg 312]
not be proportionately
represented, it might easily be got over by declaring that there should be
no such negative; or if that will not do, by declaring that there shall be
no such branch at all.
Martin said that it was understood in the Committee that the
difficulties and disputes which had been apprehended, should be guarded ag
st
in the detailing of the plan.
Wilson. The difficulties & disputes will increase with
the attempts to define & obviate them. Queen Anne was obliged to
dissolve her Parliam
in order to terminate one of these
obstinate disputes between the two Houses. Had it not been for the
mediation of the Crown, no one can say what the result would have been.
The point is still sub judice in England. He approved of the principles
laid down by the Honble President (Doct
Franklin) his
Colleague, as to the expediency of keeping the people informed of their
money affairs. But thought they would know as much, and be as well
satisfied, in one way as in the other.
Gen
Pinkney was astonished that this point should have been
considered as a concession. He remarked that the restriction to money
bills had been rejected on the merits singly considered, by 8 States ag
st
3. and that the very States which now called it a concession, were then ag
st
it as nugatory or improper in itself.
On the Question whether the clause relating to money bills in the Report
of the Com
consisting of a member from each State, sh
stand as part of the Report
Mass
ts
divid
Con
ay. N. Y. div
N. J. ay. P
no. Del. ay. M
ay.
no. N. C. ay. S. C. no. Geo. div
A Question was then raised whether the question was carried in the
affirmative; there being but 5
[pg 313]
ays out of 11. States present. The
words of the rule are (see May 28).
On this question: Mas. Con
N. J. P
Del. M
N. C. S. C. Geo. ay. N. Y. V
no
(In several preceding instances like votes had sub silentio been entered
as decided in the affirmative.)
Adjourned
Saturday, July 7. in Convention.
"Shall the clause allowing each State one vote in the 2
branch, stand as part of the Report,"? being taken up—
Gerry. This is the critical question. He had rather agree to
it than have no accommodation. A Govern
short of a proper
national plan, if generally acceptable, would be preferable to a proper
one which if it could be carried at all, would operate on discontented
States. He thought it would be best to suspend the question till the Comm
yesterday appointed, should make report.
Sherman Supposed that it was the wish of every one that some
Gen
Gov
should be established. An equal vote in
the 2
branch would, he thought, be most likely to give it the
necessary vigor. The small States have more vigor in their Gov
ts
than the large ones, the more influence therefore the large ones have, the
weaker will be the Gov
. In the large States it will be most
difficult to collect the real & fair sense of the people. Fallacy
& undue influence will be practised with most success; and improper
men will most easily get into office. If they vote by States in the 2
branch, and each State has an equal vote, there must be always a majority
of States as well as a majority of the people on the side of public
measures, & the Gov
will have decision and efficacy. If
this be not the case in
[pg 314]
the 2
branch there may
be a majority of States ag
st
public measures, and the
difficulty of compelling them to abide by the public determination, will
render the Government feebler than it has ever yet been.
Wilson was not deficient in a conciliating temper, but
firmness was sometimes a duty of higher obligation. Conciliation was also
misapplied in this instance. It was pursued here rather among the
Representatives, than among the Constituents; and it w
be of
little consequence if not established among the latter; and there could be
little hope of its being established among them if the foundation should
not be laid in justice and right.
On Question shall the words stand as part of the Report?
Mass
ts
div
. Con
ay. N. Y. ay.
N. J, ay. P
no. Del. ay. M
ay. V
no.
N. C. ay. S. C. no. Geo. div
(Note. several votes were given here in the affirmative or were div
because another final question was to be taken on the whole report.)
Gerry
[127]
thought it would be
proper to proceed
[pg 315]
to enumerate & define the powers to be vested in the Gen
Gov
before a question on the report should be taken as to the
rule of representation in the 2
branch.
[127]
King
gives the three speeches of Gerry, Madison and Pattersonas follows:
Gerry.
I agree to the measure, provided that the first Br.
(H. of Reps.) shall originate money bills and money appropriations.
The prejudices as well as the interest of our Constituents must be
regarded—two or three thousand men are in office in the States—their
influence will be in favor of an Equality of votes among the States.
Madison.
Equality in the Senate will enable a minority to
hold a majority, and to oblige them to submit to their interests, or
they will withdraw their assent to measures essential and necessary
to the general Good. I have known one man, when the State was
represented by only two, and they were divided, oppose six States in
Congress on an important occasion for three days, and finally compel
them to gratify his caprice in order to obtain his suffrage. The
Senate will possess certain exclusive Powers, such as the
appointments to office, if the States have equal votes; a minority
of People will appoint the Great Offices. Besides the small States
may be near the Seat of Govt.—a bare Quorum of the H. of R.
may be easily assembled, and carry a bill against the sense of a
majority if all were present, and the Senate, tho' all were
present, might confirm such Bill. Virginia has objected to every
addition of the powers of Congress, because she has only 1/13 of the
Power when she ought to have one sixth.
Paterson.
I hope the question will be taken: if we do not
give equal votes in the Senate to the States, the small States
agreeing that money Bills and appropriations shall originate in the
H. of Reps., elected according to numbers, it must not be expected
that the small States will agree to the amendments of the
Confederation. Let us decide this question and lose no more time. I
think that I shall vote against the provision, because I think that
the exclusive originating of money Bills & appropriations by the
H. of Reps. is giving up too much on the part of the small States."—King's
Life and Correspondence of Rufus King
, I., 613.
Madison, observed that it w
be impossible to say
what powers could be safely & properly vested in the Gov
before it was known, in what manner the States were to be represented in
it. He was apprehensive that if a just representation were not the basis
of the Gov
it would happen, as it did when the Articles of
Confederation were depending, that every effectual prerogative would be
withdrawn or withheld, and the New Gov
be
rendered as impotent and as shortlived as the old.
Patterson would not decide whether the privilege concerning
money bills were a valuable consideration or not: But he considered the
mode & rule of representation in the 1
st
branch as fully
so; and that after the establishment of that point, the small States would
never be able to defend themselves without an equality of votes in the 2
branch. There was no other ground of accommodation. His resolution was
fixt. He would meet the large States on that ground and no other. For
himself he should vote ag
st
the Report, because it yielded too
much.
[pg 316]
Gov
Morris. He had no resolution unalterably
fixed except to do what should finally appear to him right. He was ag
st
the Report because it maintained the improper constitution of the 2
branch. It made it another Congress, a mere whisp of straw. It had been s
(by M
Gerry) that the new Govern
would be partly
national, partly federal; that it ought in the first quality to protect
individuals; in the second, the States. But in what quality was it to
protect the aggregate interest of the whole. Among the many provisions
which had been urged, he had seen none for supporting the dignity and
splendor of the American Empire. It had been one of our greatest
misfortunes that the great objects of the nation had been sacrificed
constantly to local views; in like manner as the general interests of
States had been sacrificed to those of the Counties. What is to be the
check in the Senate? none; unless it be to keep the majority of the people
from injuring particular States. But particular States ought to be injured
for the sake of a majority of the people, in case their conduct should
deserve it. Suppose they should insist on claims evidently unjust, and
pursue them in a manner detrimental to the whole body. Suppose they should
give themselves up to foreign influence. Ought they to be protected in
such cases. They were originally nothing more than colonial corporations.
On the declaration of Independence, a Governm
was to be
formed. The small States aware of the necessity of preventing anarchy, and
taking advantage of the moment, extorted from the large ones an equality
of votes. Standing now on that ground, they demand under the new system
greater rights as men, than their fellow Citizens of the large States. The
proper answer to them is that the same necessity of which they formerly
took advantage, does not now exist, and that the large States are at
liberty now to consider
[pg 317]
what is right, rather than what may
be expedient. We must have an efficient Gov
and if there be an
efficiency in the local Gov
ts
the former is impossible. Germany
alone proves it. Notwithstanding their common diet, notwithstanding the
great prerogatives of the Emperor as head of the Empire, and his vast
resources, as sovereign of his particular dominions, no union is
maintained; foreign influence disturbs every internal operation, &
there is no energy whatever in the General Governm
. Whence
does this proceed? From the energy of the local authorities; from its
being considered of more consequence to support the Prince of Hesse, than
the Happiness of the people of Germany. Do Gentlemen wish this to be y
case here. Good God, Sir, is it possible they can so delude themselves.
What if all the Charters & Constitutions of the States were thrown
into the fire, and all their demagogues into the Ocean. What would it be
to the happiness of America. And will not this be the case here if we
pursue the train in w
ch
the business lies. We shall establish
an Aulic Council without an Emperor to execute its decrees. The same
circumstances which unite the people here, unite them in Germany. They
have there a common language, a common law, common usages and manners, and
a common interest in being united; Yet their local jurisdictions destroy
every tie. The case was the same in the Grecian States. The United
Netherlands are at this time torn in factions. With these examples before
our eyes shall we form establishments which must necessarily produce the
same effects. It is of no consequence from what districts the 2
branch shall be drawn, if it be so constituted as to yield an asylum ag
st
these evils. As it is now constituted he must be ag
st
its being
drawn from the States in equal portions. But still he was ready to join in
devising such an amendment of the
[pg 318]
plan, as will be most likely to
secure our liberty & happiness.
Sherman & M
Elseworth moved to postpone the
Question on the Report from the Committee of a member from each State, in
order to wait for the Report from the Com
of 5 last appointed.
Mass
ts
ay. Con
ay. N. Y. no.
N. J. ay. P
ay. Del. ay. Maryland ay. V
no.
N. C. no. S. C. no. Geo. no.
Adj
Monday July 9
th
in Convention.
Daniel Carroll, from Maryland took his seat.
Gov
Morris delivered a report from the Com
of 5 members to whom was committed the clause in the Report of the Com
consisting of a member from each State, stating the proper ratio of
Representatives in the 1
st
branch, to be as 1 to every 40,000
inhabitants, as follows viz
"The Committee to whom was referred the 1
st
clause of the 1
st
proposition reported from the grand Committee, beg leave to report:
I. that in the 1
st
meeting of the Legislature the 1
st
branch thereof consist of 56. members of which Number N. Hampshire
shall have 2, Mass
ts
7, R. I
1, Con
4,
N. Y. 5, N. J. 3, P
8, Del. 1, M
4, V
9, N. C. 5, S. C. 5, Geo. 2.
II. But as the present situation of the States may probably alter as well
in point of wealth as in the number of their inhabitants, that the
Legislature be authorized from time to time to augment y
number of Representatives. And in case any of the States shall hereafter
be divided, or any two or more States united, or any new States created
within the limits of the United States, the Legislature shall possess
authority to regulate the number of Representatives
[pg 319]
in any of the
foregoing cases, upon the principles of their wealth and number of
inhabitants."
Sherman wished to know on what principles or calculations
the Report was founded. It did not appear to correspond with any rule of
numbers, or of any requisition hitherto adopted by Cong
Gorham. Some provision of this sort was necessary in the
outset. The number of blacks & whites with some regard to supposed
wealth was the general guide. Fractions could not be observed. The Legisl
re
is to make alterations from time to time as justice & propriety may
require. Two objections prevailed ag
st
the rate of 1 member for
every 40,000 inh
ts
. The 1
st
was that the
Representation would soon be too numerous: the 2
that the West
States who may have a different interest, might if admitted on that
principle by degrees, outvote the Atlantic. Both these objections are
removed. The number will be small in the first instance and may be
continued so. And the Atlantic States having y
Gov
in their own hands, may take care of their own interest, by dealing out
the right of Representation in safe proportions to the Western States.
These were the views of the Committee.
L. Martin wished to know whether the Com
were
guided in the ratio, by the wealth or number of inhabitants, of the
States, or by both; noting its variations from former apportionments by
Cong
Gov
Morris & M
Rutlidge moved to
postpone the 1
st
paragraph relating to the number of members to
be allowed each State in the first instance, and to take up the 2
paragraph authorizing the Legisl
re
to alter the number from
time to time according to wealth & inhabitants. The motion was agreed
to nem. con.
On Question on the 2
parag
taken without any
debate
Mass
ts
ay. Con
ay. N. Y. no.
N. J. no. P
ay.
[pg 320]
Del. ay. M
ay.
ay. N. C. ay. S. C. ay. Geo. ay.
Sherman moved to refer the 1
st
part apportioning
the Representatives, to a Comm
of a member from each State.
Gov
Morris seconded the motion; observing that
this was the only case in which such committees were useful.
Williamson thought it would be necessary to return to the
rule of numbers, but that the Western States stood on different footing.
If their property shall be rated as high as that of the Atlantic States,
then their representation ought to hold a like proportion. Otherwise if
their property was not to be equally rated.
Gov
Morris. The Report is little more than a
guess. Wealth was not altogether disregarded by the Com
. Where
it was apparently in favor of one State, whose n
os
were
superior to the numbers of another, by a fraction only, a member
extraordinary was allowed to the former: and so vice versa. The Committee
meant little more than to bring the matter to a point for the
consideration of the House.
Reed asked why Georgia was allowed 2 members, when her
number of inhabitants had stood below that of Delaware.
Gov
Morris. Such is the rapidity of the
population of that State, that before the plan takes effect, it will
probably be entitled to 2 Representatives.
Randolph, disliked the Report of the Com
but had
been unwilling to object to it. He was apprehensive that as the number was
not be changed, till the Nat
Legislature should please, a
pretext would never be wanting to postpone alterations, and keep the power
in the hands of those possessed of it. He was in favor of the Commitm
to a member from each State.
[pg 321]
Patterson considered the proposed estimate for the future
according to the combined rules of numbers and wealth, as too vague. For
this reason N. Jersey was ag
st
it. He could regard negroes
slaves in no light but as property. They are no free agents, have no
personal liberty, no faculty of acquiring property, but on the contrary
are themselves property, & like other property entirely at the will of
the Master. Has a man in Virg
a number of votes in proportion
to the number of his slaves? And if negroes are not represented in the
States to which they belong, why should they be represented in the Gen
Gov
. What is the true principle of Representation? It is an
expedient by which an assembly of certain individ
ls
chosen by
the people is substituted in place of the inconvenient meeting of the
people themselves. If such a meeting of the people was actually to take
place, would the slaves vote? They would not. Why then sh
they
be represented. He was also ag
st
such an indirect encouragem
of the slave trade; observing that Cong
in their act relating
to the change of the 8 art: of Confed
had been ashamed to use
the term "slaves" & had substituted a description.
Madison reminded M
Patterson that his doctrine
of Representation which was in its principle the genuine one, must forever
silence the pretensions of the small States to an equality of votes with
the large ones. They ought to vote in the same proportion in which their
Citizens would do, if the people of all the States were collectively met.
He suggested as a proper ground of compromise, that in the first branch
the States should be represented according to their number of free
inhabitants; And in the 2
which had for one of its primary
objects the guardianship of property, according to the whole number,
including slaves.
Butler urged warmly the justice & necessity
[pg 322]
of
regarding wealth in the apportionment of Representation.
King had always expected that as the Southern States are the
richest, they would not league themselves with the North
unless some respect were paid to their superior wealth. If the latter
expect those preferential distinctions in Commerce, & other advantages
which they will derive from the connexion they must not expect to receive
them without allowing some advantages in return. Eleven out of 13 of the
States had agreed to consider Slaves in the apportionment of taxation; and
taxation and Representation ought to go together.
On the question for committing the first paragraph of the Report to a
member from each State
Mass
ts
ay. Con
ay. N. Y. no.
N. J. ay. P
ay. Del. ay. M
ay.
ay. N. C. ay. S. C. no. Geo. ay.
The Com
appointed were M
King, M
Sherman, M
Yates, M
Brearly, M
Gov
Morris, M
Reed, M
Carrol, M
Madison, M
Williamson, M
Rutlidge, M
Houston.
Adj
Tuesday July 10. In Convention.
King reported from the Com
yesterday appointed
that the States at the 1
st
meeting of the General Legislature,
should be represented by 65 members, in the following proportions, to wit
N. Hampshire by 3, Mass
ts
8, R. Is
1, Con
5, N. Y. 6, N. J. 4, P
8, Del. 1, M
6, V
10, N. C. 5, S. C. 5, Georgia 3.
Rutlidge moved that N. Hampshire be reduced from 3 to
2. members. Her numbers did not entitle her to 3 and it was a poor State.
Gen
Pinkney seconds the motion.
[pg 323]
King. N. Hampshire has probably more than 120,000 Inhab
ts
and has an extensive Country of tolerable fertility. Its inhab
ts
therefore may be expected to increase fast. He remarked that the four
Eastern States, having 800,000 souls, have 1/3 fewer representatives than
the four Southern States, having not more than 700,000 souls, rating the
blacks as 5 for 3. The Eastern people will advert to these circumstances,
and be dissatisfied. He believed them to be very desirous of uniting with
their Southern brethren, but did not think it prudent to rely so far on
that disposition as to subject them to any gross inequality. He was fully
convinced that the question concerning a difference of interests did not
lie where it had hitherto been discussed, between the great & small
States; but between the Southern & Eastern. For this reason he had
been ready to yield something in the proportion of representatives for the
security of the Southern. No principle would justify the giving them a
majority. They were brought as near an equality as was possible. He was
not averse to giving them a still greater security, but did not see how it
could be done.
Gen
Pinkney. The Report before it was committed was more
favorable to the S. States than as it now stands. If they are to form
so considerable a minority, and the regulation of trade is to be given to
the Gen
Government, they will be nothing more than overseers
for the Northern States. He did not expect the S. States to be raised
to a majority of representatives, but wished them to have something like
an equality. At present by the alterations of the Com
in favor
of the N. States they are removed farther from it than they were
before. One member indeed had been added to Virg
which he was
glad of as he considered her as a Southern State. He was glad also that
the members of Georgia were increased.
[pg 324]
Williamson was not for reducing N. Hampshire from 3 to
2, but for reducing some others. The South
Interest must be
extremely endangered by the present arrangement. The North
States are to have a majority in the first instance and the means of
perpetuating it.
Dayton observed that the line between North
& Southern interest had been improperly drawn; that P
was
the dividing State, there being six on each side of her.
Gen
Pinkney urged the reduction, dwelt on the superior wealth
of the Southern States, and insisted on its having its due weight in the
Government.
Gov
Morris regretted the turn of the debate. The
States he found had many Representatives on the floor. Few he fears were
to be deemed the Representatives of America. He thought the Southern
States have by the report more than their share of representation.
Property ought to have its weight, but not all the weight. If the South
States are to supply money. The North
States are to spill
their blood. Besides, the probable Revenue to be expected from the S. States
has been greatly overrated. He was ag
st
reducing N. Hampshire.
Randolph was opposed to a reduction of N. Hampshire, not
because she had a full title to three members; but because it was in his
contemplation 1. to make it the duty instead of leaving it in the
discretion of the Legislature to regulate the representation by a
periodical census. 2. to require more than a bare majority of votes in the
Legislature in certain cases & particularly in commercial cases.
On the question for reducing N. Hampshire from 3 to 2 Represent
it passed in the negative
Mass
ts
no. Con
no. N. J. no.
no. Del. no. M
no. V
no.
N. C. ay. S. C. ay. Geo. no.
[128]
[128]
In
printed Journal. N. C. no. Geo. ay. Note in Madison's
hand.
[pg 325]
Gen
Pinkney and M
Alex
Martin moved
that 6 Rep
instead of 5 be allowed to N. Carolina.
On the Question, it passed in the negative
Mass
ts
no. Con
no. N. J. no.
no. Del. no. M
no. V
no.
N. C. ay. S. C. ay. Geo. ay.
Gen
Pinkney & M
Butler made the same motion in
favor of S. Carolina
On the Question it passed in the negative
Mass
ts
no. Con
no. N. Y. no.
N. J. no. P
no. Del. ay. M
no.
no. N. C. ay. S. C. ay. Geo. ay.
Gen
Pinckney & M
Houston moved that Georgia be
allowed 4 instead of 3 Rep
urging the unexampled celerity of
its population. On the Question, it passed in the Negative
Mass
ts
no. Con
no. N. Y. no.
N. J. no. P
no. Del. no. M
no.
ay. N. C. ay. S. C. ay. Geo. ay.
Madison, moved that the number allowed to each State be
doubled. A
majority
of a
Quorum
of
65
members, was
too small a number to represent the whole inhabitants of the U. States;
They would not possess enough of the confidence of the people, and w
be too sparsely taken from the people, to bring with them all the local
information which would be frequently wanted. Double the number will not
be too great, even with the future additions from New States. The
additional expence was too inconsiderable to be regarded in so important a
case. And as far as the augmentation might be unpopular on that score, the
objection was overbalanced by its effect on the hopes of a greater number
of the popular candidates.
Elseworth urged the objection of expence, & that the
greater the number, the more slowly would the business proceed; and the
less probably be decided as it ought, at last. He thought the number of
Representatives too great in most of the State
[pg 326]
Legislatures; and
that a large number was less necessary in the Gen
Legislature
than in those of the States, as its business would relate to a few great
national Objects only.
Sherman would have preferred 50 to 65. The great distance
they will have to travel will render their attendance precarious and will
make it difficult to prevail on a sufficient number of fit men to
undertake the service. He observed that the expected increase from new
States also deserved consideration.
Gerry was for increasing the number beyond 65. The larger
the number, the less the danger of their being corrupted. The people are
accustomed to & fond of a numerous representation, and will consider
their rights as better secured by it. The danger of excess in the number
may be guarded ag
st
by fixing a point within which the number
shall always be kept.
Col. Mason admitted that the objection drawn from the consideration of
expence, had weight both in itself, and as the people might be affected by
it. But he thought it outweighed by the objections ag
st
the
smallness of the number. 38, will he supposes, as being a majority of 65.
form a quorum. 20 will be a majority of 38. This was certainly too small a
number to make laws for America. They would neither bring with them all
the necessary information relative to various local interests, nor possess
the necessary confidence of the people. After doubling the number, the
laws might still be made by so few as almost to be objectionable on that
account.
Read was in favor of the Motion. Two of the States (Del.
& R. I.) would have but a single member if the aggregate number should
remain at 65. and in case of accident to either of these one State w
have no representative present to give explanations or
[pg 327]
informations of its interests or wishes. The people would not place their
confidence in so small a number. He hoped the objects of the Gen
Gov
would be much more numerous than seemed to be expected by
some gentlemen, and that they would become more & more so. As to New
States the highest number of Rep
for the whole might be
limited, and all danger of excess thereby prevented.
Rutlidge opposed the motion. The Representatives were too
numerous in all the States. The full number allotted to the States may be
expected to attend, & the lowest possible quorum sh
not
therefore be considered. The interests of their Constituents will urge
their attendance too strongly for it to be omitted: and he supposed the
Gen
Legislature would not sit more than 6 or 8 weeks in the
year.
On the Question for doubling the number, it passed in the negative
Mas
ts
no. Con
no. N. Y. no.
N. J. no. P
no. Del. ay. M
no.
ay. N. C. no. S. C. no. Geo. no.
On the question for agreeing to the apportionment of Rep
as
amended by the last committee, it passed in the affirmative
Mas. ay. Con
ay. N. Y. ay. N. J. ay.
ay. Del. ay. M
ay. V
ay.
N. C. ay. S. C. no. Geo. no.
Broom gave notice to the House that he had concurred with a
reserve to himself of an intention to claim for his State an equal voice
in the 2
branch; which he thought could not be denied after
this concession of the small States as to the first branch.
Randolph moved as an amendment to the report of the Comm
of five "that in order to ascertain the alterations in the population
& wealth of the several States the Legislature should be required to
cause a census, and estimate to be taken within one year after its first
meeting; and every —— years
[pg 328]
thereafter, and that
the Legisl
re
arrange the Representation accordingly."
Gov
Morris opposed it as fettering the
Legislature too much. Advantage may be taken of it in time of war or the
apprehension of it, by new States to extort particular favors. If the mode
was to be fixed for taking a Census, it might certainly be extremely
inconvenient: if unfixt the Legislature may use such a mode as will defeat
the object: and perpetuate the inequality. He was always ag
st
such shackles on the Legisl
re
. They had been found very
pernicious in most of the State Constitutions. He dwelt much on the danger
of throwing such a preponderancy into the Western Scale, suggesting that
in time the Western people w
outnumber the Atlantic States. He
wished therefore to put it in the power of the latter to keep a majority
of votes in their own hands. It was objected he said that if the Legisl
re
are left at liberty, they will never readjust the Representation. He
admitted that this was possible; but he did not think it probable unless
the reasons ag
st
a revision of it were very urgent & in
this case, it ought not to be done.
It was moved to postpone the proposition of M
Randolph in
order to take up the following, viz. "that the Committee of Eleven, to
whom was referred the report of the Committee of five on the subject of
Representation, be requested to furnish the Convention with the principles
on which they grounded the Report," which was disagreed to; S. C.
alone voting in the affirmative.
Adjourned
Wednesday July 11. in Convention.
Randolph's motion requiring the Legisl
re
to
take a periodical census for the purpose of redressing inequalities in the
Representation was resumed.
[pg 329]
Sherman was ag
st
. Shackling the Legislature too
much. We ought to choose wise & good men, and then confide in them.
Mason. The greater the difficulty we find in fixing a proper
rule of Representation, the more unwilling ought we to be, to throw the
task from ourselves on the Gen
Legisl
re
. He did not
object to the conjectural ratio which was to prevail in the outset; but
considered a Revision from time to time according to some permanent &
precise standard as essential to y
fair representation
required in the 1
st
branch. According to the present population
of America, the North
part of it had a right to preponderate,
and he could not deny it. But he wished it not to preponderate hereafter
when the reason no longer continued. From the nature of man we may be sure
that those who have power in their hands will not give it up while they
can retain it. On the contrary we know that they will always when they can
rather increase it. If the S. States therefore should have 3/4 of the
people of America within their limits, the Northern will hold fast the
majority of Representatives. 1/4 will govern the 3/4. The S. States will
complain; but they may complain from generation to generation without
redress. Unless some principle therefore which will do justice to them
hereafter shall be inserted in the Constitution, disagreable as the
declaration was to him, he must declare he could neither vote for the
system here, nor support it, in his State. Strong objections had been
drawn from the danger to the Atlantic interests from new Western States.
Ought we to sacrifice what we know to be right in itself, lest it should
prove favorable to States which are not yet in existence. If the Western
States are to be admitted into the Union, as they arise, they must, he w
repeat, be treated as equals, and subjected to no degrading
discriminations. They will
[pg 330]
have the same pride & other
passions which we have and will either not unite with or will speedily
revolt from the Union, if they are not in all respects placed on an equal
footing with their brethren. It has been said they will be poor, and
unable to make equal contributions to the general Treasury. He did not
know but that in time they would be both more numerous & more wealthy
than their Atlantic brethren. The extent & fertility of their soil,
made this probable; and though Spain might for a time deprive them of the
natural outlet for their productions, yet she will, because she must,
finally yield to their demands. He urged that numbers of inhabitants;
though not always a precise standard of wealth was sufficiently so for
every substantial purpose.
Williamson was for making it a duty of the Legislature to do
what was right & not leaving it at liberty to do or not to do it. He
moved that M
Randolph's propositions be postpon
in order to consider the following "that in order to ascertain the
alterations that may happen in the population & wealth of the several
States, a census shall be taken of the free white inhabitants and 3/5
ths
of those of other descriptions on the 1
st
year after this
Government shall have been adopted and every —— year
thereafter; and that the Representation be regulated accordingly."
Randolph agreed that M
Williamson's
proposition should stand in the place of his. He observed that the ratio
fixt for the 1
st
meeting was a mere conjecture, that it placed
the power in the hands of that part of America, which could not always be
entitled to it, that this power would not be voluntarily renounced; and
that it was consequently the duty of the Convention to secure its
renunciation when justice might so require; by some constitutional
provisions. If equality between great & small States be inadmissible,
[pg 331]
because in that case unequal numbers of Constituents w
be
represented by equal number of votes; was it not equally inadmissible that
a larger & more populous district of America should hereafter have
less representation, than a smaller & less populous district. If a
fair representation of the people be not secured, the injustice of the Gov
will shake it to its foundations. What relates to suffrage is justly
stated by the celebrated Montesquieu, as a fundamental article in
Republican Gov
. If the danger suggested by M
Gov
Morris be real, of advantage being taken of the Legislature in pressing
moments, it was an additional reason, for tying their hands in such a
manner that they could not sacrifice their trust to momentary
considerations. Cong
have pledged the public faith to New
States, that they shall be admitted on equal terms. They never would or
ought to accede on any other. The census must be taken under the direction
of the General Legislature. The States will be too much interested to take
an impartial one for themselves.
Butler & Gen
Pinkney insisted that blacks be
included in the rule of Representation
equally
with the whites; and
for that purpose moved that the words "three-fifths" be struck out.
Gerry thought that 3/5 of them was to say the least the full
proportion that could be admitted.
Ghorum. This ratio was fixed by Cong
as a rule
of taxation. Then it was urged by the Delegates representing the States
having slaves that the blacks were still more inferior to freemen. At
present when the ratio of representation is to be established, we are
assured that they are equal to freemen. The arguments on y
former occasion convinced him that 3/5 was pretty near the just proportion
and he should vote according to the same opinion now.
Butler insisted that the labour of a slave in
[pg 332]
S. Carol
was as productive & valuable as that of a freeman in Mass
ts
that as wealth was the great means of defence and utility to the Nation
they were equally valuable to it with freemen; and that consequently an
equal representation ought to be allowed for them in a Government which
was instituted principally for the protection of property, and was itself
to be supported by property.
Mason could not agree to the motion, notwithstanding it was
favorable to Virg
because he thought it unjust. It was certain
that the slaves were valuable, as they raised the value of land, increased
the exports & imports, and of course the revenue, would supply the
means of feeding & supporting an army, and might in cases of emergency
become themselves soldiers. As in these important respects they were
useful to the Community at large, they ought not to be excluded from the
estimate of Representation. He could not however regard them as equal to
freemen and could not vote for them as such. He added as worthy of remark,
that the Southern States have this peculiar species of property over &
above the other species of property common to all the States.
Williamson reminded M
Ghorum that if the South
States contended for the inferiority of blacks to whites when taxation was
in view, the Eastern States on the same occasion contended for their
equality. He did not however either then or now concur in either extreme,
but approved of the ratio of 3/5.
On M
Butler's motion for considering blacks as equal to
Whites in the apportionm
of Representation
Mass
ts
no. Con
no. (N. Y. not on
floor). N. J. no. P
no. Del. ay. M
no.
no. N. C. no. S. C. ay. Geo. ay.
Gov
Morris said he had several objections
[pg 333]
to
the proposition of M
Williamson. 1. It fettered the
Legislature too much. 2. it would exclude some States altogether who would
not have a sufficient number to entitle them to a single Representative.
3. it will not consist with the Resolution passed on Saturday last
authorizing the Legislature to adjust the Representation from time to time
on the principles of population & wealth or with the principles of
equity. If slaves were to be considered as inhabitants, not as wealth then
the s
Resolution would not be pursued. If as wealth, then why
is no other wealth but slaves included? These objections may perhaps be
removed by amendments. His great objection was that the number of
inhabitants was not a proper standard of wealth. The amazing difference
between the comparative numbers & wealth of different countries,
rendered all reasoning superfluous on the subject. Numbers might with
greater propriety be deemed a measure of strength, than of wealth, yet the
late defence made by G. Britain, ag
st
her numerous enemies
proved in the clearest manner, that it is entirely fallacious even in this
respect.
King thought there was great force in the objections of M
Gov
Morris: he would however accede to the proposition for the
sake of doing something.
Rutlidge contended for the admission of wealth in the
estimate by which Representation should be regulated. The Western States
will not be able to contribute in proportion to their numbers; they sh
not therefore be represented in that proportion. The Atlantic States will
not concur in such a plan. He moved that "at the end of ——
years after the 1
st
meeting of the Legislature, and of every
—— years thereafter, the Legislature shall proportion the
Representation according to the principles of wealth & population."
Sherman thought the number of people alone
[pg 334]
the best rule for measuring wealth as well as representation; and that if
the Legislature were to be governed by wealth, they would be obliged to
estimate it by numbers. He was at first for leaving the matter wholly to
the discretion of the Legislature; but he had been convinced by the
observation of (M
Randolph & M
Mason), that
the
periods
& the
rule
, of revising the Representation
ought to be fixt by the Constitution.
Reed thought the Legislature ought not to be too much
shackled. It would make the Constitution like Religious Creeds,
embarrassing to those bound to conform to them & more likely to
produce dissatisfaction and scism, than harmony and union.
Mason objected to M
Rutlidge's motion, as
requiring of the Legislature something too indefinite & impracticable,
and leaving them a pretext for doing nothing.
Wilson had himself no objection to leaving the Legislature
entirely at liberty. But considered wealth as an impracticable rule.
Ghorum. If the Convention who are comparatively so little
biassed by local views are so much perplexed, How can it be expected that
the Legislature hereafter under the full biass of those views, will be
able to settle a standard. He was convinced by the arguments of others
& his own reflections, that the Convention ought to fix some standard
or other.
Gov
Morris. The arg
ts
of others &
his own reflections had led him to a very different conclusion. If we can't
agree on a rule that will be just at this time, how can we expect to find
one that will be just in all times to come. Surely those who come after us
will judge better of things present, than we can of things future. He
could not persuade himself that numbers would be a just rule at any time.
The remarks of (M
Mason) relative to the
[pg 335]
Western Country had
not changed his opinion on that head. Among other objections it must be
apparent they would not be able to furnish men equally enlightened, to
share in the administration of our common interests. The Busy haunts of
men not the remote wilderness, was the proper school of political Talents.
If the Western people get the power into their hands they will ruin the
Atlantic interests. The Back members are always most averse to the best
measures. He mentioned the case of Pen
formerly. The lower
part of the State had y
power in the first instance. They kept
it in y
own hands & the country was y
better
for it. Another objection with him ag
st
admitting the blacks
into the census, was that the people of Pen
would revolt at
the idea of being put on a footing with slaves. They would reject any plan
that was to have such an effect. Two objections had been raised ag
st
leaving the adjustment of the Representation from time, to time, to the
discretion of the Legislature. The 1. was, they would be unwilling to
revise it at all. The 2 that by referring to
wealth
they would be
bound by a rule which if willing, they would be unable to execute. The 1
st
obj
distrusts their fidelity. But if their duty, their honor
& their oaths will not bind them, let us not put into their hands our
liberty, and all our other great interests; let us have no Gov
at all. 2. If these ties will bind them, we need not distrust the
practicability of the rule. It was followed in part by the Com
in the apportionment of Representatives yesterday reported to the House.
The best course that could be taken would be to leave the interests of the
people to the Representatives of the people.
Madison was not a little surprised to hear this implicit
confidence urged by a member who on all occasions, had inculcated so
strongly, the political depravity of men, and the necessity of checking
one
[pg 336]
vice and interest by opposing to them another vice & interest. If the
Representatives of the people would be bound by the ties he had mentioned,
what need was there of a Senate? What of a Revisionary power? But his
reasoning was not only inconsistent with his former reasoning, but with
itself. At the same time that he recommended this implicit confidence to
the Southern States in the Northern majority, he was still more zealous in
exhorting all to a jealousy of a Western Majority. To reconcile the gentl
with himself, it must be imagined that he determined the human character
by the points of the compass. The truth was that all men having power
ought to be distrusted to a certain degree. The case of Pen
had been mentioned where it was admitted that those who were possessed of
the power in the original settlement, never admitted the new settlem
ts
to a due share of it. England was a still more striking example. The power
there had long been in the hands of the boroughs, of the minority; who had
opposed & defeated every reform which had been attempted. Virg
was in a lesser degree another example. With regard to the Western States,
he was clear & firm in opinion, that no unfavorable distinctions were
admissible either in point of justice or policy. He thought also that the
hope of contributions to the Treas
from them had been much
underrated. Future contributions it seemed to be understood on all hands
would be principally levied on imports & exports. The extent and
fertility of the Western Soil would for a long time give to agriculture a
preference over manufactures. Trials would be repeated till some articles
could be raised from it that would bear a transportation to places where
they could be exchanged for imported manufactures. Whenever the
Mississippi should be opened to them, which would of necessity be y
case as soon as their
[pg 337]
population would subject them to any considerable share of the Public
burden, imposts on their trade could be collected with less expence &
greater certainty, than on that of the Atlantic States. In the mean time,
as their supplies must pass through the
Atlantic States
, their
contributions would be levied in the same manner with those of the
Atlantic States. He could not agree that any substantial objection lay ag
st
fix
numbers for the perpetual standard of Representation. It
was said that Representation & taxation were to go together; that
taxation and wealth ought to go together, that population & wealth
were not measures of each other. He admitted that in different climates,
under different forms of Gov
and in different stages of
civilization the inference was perfectly just. He would admit that in no
situation, numbers of inhabitants were an accurate measure of wealth. He
contended however that in the U. States it was sufficiently so for the
object in contemplation. Altho' their climate varied considerably, yet
as the Gov
ts
the laws, and the manners of all were nearly the
same, and the intercourse between different parts perfectly free,
population, industry, arts, and the value of labour, would constantly tend
to equalize themselves. The value of labour might be considered as the
principal criterion of wealth and ability to support taxes; and this would
find its level in different places where the intercourse should be easy
& free, with as much certainty as the value of money or any other
thing. Wherever labour would yield most, people would resort, till the
competition should destroy the inequality. Hence it is that the people are
constantly swarming from the more to the less populous places—from
Europe to Am
—from the North
& Middle
parts of the U. S. to the Southern & Western. They go where land
is cheaper, because there labour is dearer. If it be true that the same
[pg 338]
quantity of produce raised on the banks of the Ohio is of less value, than
on the Delaware, it is also true that the same labor will raise twice or
thrice, the quantity in the former, that it will raise in the latter
situation.
Col. Mason. Agreed with M
Gov
Morris that we ought
to leave the interests of the people to the Representatives of the people;
but the objection was that the Legislature would cease to be the
Representatives of the people. It would continue so no longer than the
States now containing a majority of the people should retain that
majority. As soon as the Southern & Western population should
predominate, which must happen in a few years, the power w
be
in the hands of the minority, and would never be yielded to the majority,
unless provided for by the Constitution.
On the Question for postponing M
Williamson's motion, in
order to consider that of M
Rutlidge, it passed in the
negative, Mass
ts
ay. Con
no. N. J. no.
ay. Del. ay. M
no. V
no.
N. C. no. S. C. ay. Geo. ay.
On the question on the first clause of M
Williamson's
motion as to taking a census of the free inhabitants, it passed in the
affirmative; Mass
ts
ay. Con
ay. N. J. ay.
ay. Del. no. M
no. V
ay.
N. C. ay. S. C. no. Geo. no.
the next clause as to 3/5 of the negroes considered.
King being much opposed to fixing numbers as the rule of
representation, was particularly so on account of the blacks. He thought
the admission of them along with Whites at all, would excite great
discontents among the States having no slaves. He had never said as to any
particular point that he would in no event acquiesce in & support it;
but he w
say that if any in case such a declaration was to be
made by him, it would be in this. He remarked that in the temporary
allotment of Representatives
[pg 339]
made by the Committee, the Southern
States had received more than the number of their white & Three fifths
of their black inhabitants entitled them to.
Sherman. S. Carol
had not more beyond her
proportion than N. York & N. Hampshire, nor either of them
more than was necessary in order to avoid fractions or reducing them below
their proportions. Georgia had more; but the rapid growth of that State
seemed to justify it. In general the allotment might not be just, but
considering all circumstances, he was satisfied with it.
Ghorum. supported the propriety of establishing numbers as
the rule. He said that in Mass
ts
estimates had been taken in
the different towns, and that persons had been curious enough to compare
these estimates with the respective numbers of people; and it had been
found even including Boston, that the most exact proportion prevailed
between numbers & property. He was aware that there might be some
weight in what had fallen from his colleague, as to the umbrage which
might be taken by the people of the Eastern States. But he recollected
that when the proposition of Cong
for changing the 8
th
art: of the Confed
was before the Legislature of Mass
ts
the only difficulty then was to satisfy them that the negroes ought not to
have been counted equally with whites instead of being counted in ratio of
three-fifths only.
[129]
[129]
They
were then to have been a rule of taxation only. Note in Madison's
handwriting.
Wilson did not well see on what principle the admission of
blacks in the proportion of three fifths could be explained. Are they
admitted as Citizens? then why are they not admitted on an equality with
White Citizens? are they admitted as property? then why is not other
property admitted into the computation? These were difficulties however
[pg 340]
which he thought must be overruled by the necessity of compromise. He had
some apprehensions also from the tendency of the blending of the blacks
with the whites, to give disgust to the people of Pen
, as had
been intimated by his Colleague (M
Gov
Morris).
But he differed from him in thinking numbers of inhab
ts
so
incorrect a measure of wealth. He had seen the Western settlem
ts
of P
and on a comparison of them with the City of Philad
could discover little other difference, than that property was more
unequally divided among individuals here than there. Taking the same
number in the aggregate in the two situations he believed there would be
little difference in their wealth and ability to contribute to the public
wants.
Gov
Morris was compelled to declare himself
reduced to the dilemma of doing injustice to the Southern States or to
human nature, and he must therefore do it to the former. For he could
never agree to give such encouragement to the Slave Trade as would be
given by allowing them a representation for their negroes, and he did not
believe those States would ever confederate on terms that would deprive
them of that trade.
On Question for agreeing to include 3/5 of the blacks Mass
ts
no.
Con
ay. N. J. no. P
no. Del. no.
[130]
no. V
ay.
N. C. ay. S. C. no. Geo. ay.
[130]
(M
Carrol s
in explanation of the vote of M
that
he wished the phraseology to be so altered as to obviate if possible
the danger which had been expressed of giving umbrage to the Eastern
& Middle States.) Note in Madison's hand.
On the question as to taking census "the first year after the meeting of
the Legislature"
Mass
ts
ay. Con
no. N. J. ay.
ay. Del. ay. M
no. V
ay.
N. C. ay. S. C. ay. Geo. no.
On filling the blank for the periodical census, with 15 years. Agreed to
nem. con.
Madison moved to add, after "15 years," the
[pg 341]
words "at least" that the Legislature might anticipate when circumstances
were likely to render a particular year inconvenient.
On this motion for adding "at least," it passed in the negative the States
being equally divided.
Mas. ay. Con
no. N. J. no. P
no.
Del. no. M
no. V
ay. N. C. ay.
S. C. ay. Geo. ay.
A Change of the phraseology of the other clause so as to read, "and the
Legislature shall alter or augment the representation accordingly," was
agreed to nem. con.
On the question on the whole resolution of M
Williamson as
amended,
Mas. no. Con
no. N. J. no. Del. no.
no. V
no. N. C. no. S. C. no.
Geo. no.
Thursday, July 12. In Convention.
Gov
Morris moved to add to the clause empowering
the Legislature to vary the Representation according to the principles of
wealth & numbers of inhab
ts
a "proviso that taxation shall
be in proportion to Representation."
Butler contended again that Representation s
be
according to the full number of inhab
ts
including all the
blacks; admitting the justice of M
Gov
Morris's
motion.
Mason also admitted the justice of the principle, but was
afraid embarrassments might be occasioned to the Legislature by it. It
might drive the Legislature to the plan of Requisitions.
Gov
Morris, admitted that some objections lay ag
st
his Motion, but supposed they would be removed by restraining the rule to
direct
taxation. With regard to indirect taxes on
exports
& imports & on consumption the rule would be inapplicable.
Notwithstanding what had been said to the
[pg 342]
contrary he was
persuaded that the imports & consumption were pretty nearly equal
throughout the Union.
General Pinkney liked the idea. He thought it so just that it could not be
objected to. But foresaw that if the revision of the census was left to
the discretion of the Legislature, it would never be carried into
execution. The rule must be fixed, and the execution of it enforced by the
Constitution. He was alarmed at what was said
[131]
yesterday, concerning the Negroes. He was now again alarmed at what had
been thrown out concerning the taxing of exports. S. Carol
has in one year exported to the amount of £600,000 Sterling all which was
the fruit of the labor of her blacks. Will she be represented in
proportion to this amount? She will not. Neither ought she then to be
subject to a tax on it. He hoped a clause would be inserted in the system,
restraining the Legislature from taxing Exports.
[131]
By M
Gov
Morris. Note in Madison's handwriting.
Wilson approved the principle, but could not see how it
could be carried into execution; unless restrained to direct taxation.
Gov
Morris having so varied his Motion by
inserting the word "direct." It pass
nem. con. as follows—"provided
always that direct taxation ought to be proportioned to representation."
Davie said it was high time now to speak out. He saw that it
was meant by some gentlemen to deprive the Southern States of any share of
Representation for their blacks. He was sure that N. Carol
would never confederate on any terms that did not rate them at least as
3/5. If the Eastern States meant therefore to exclude them altogether the
business was at an end.
Johnson, thought that wealth and population
[pg 343]
were the true, equitable rule of representation; but he conceived that
these two principles resolved themselves into one; population being the
best measure of wealth. He concluded therefore that y
number
of people ought to be established as the rule, and that all descriptions
including blacks
equally
with the Whites, ought to fall within the
computation. As various opinions had been expressed on the subject, he
would move that a Committee might be appointed to take them into
consideration and report thereon.
Gov
Morris. It has been said that it is high
time to speak out, as one member, he would candidly do so. He came here to
form a compact for the good of America. He was ready to do so with all the
States. He hoped & believed that all would enter into such a Compact.
If they would not he was ready to join with any States that would. But as
the Compact was to be voluntary, it is in vain for the Eastern States to
insist on what the South
States will never agree to. It is
equally vain for the latter to require what the other States can never
admit; and he verily believed the people of Pen
will never
agree to a representation of Negroes. What can be desired by these States
more than has been already proposed; that the Legislature shall from time
to time regulate Representation according to population & wealth.
Gen
Pinkney desired that the rule of wealth should be
ascertained and not left to the pleasure of the Legislature; and that
property in slaves should not be exposed to danger under a Gov
instituted for the protection of property.
The first clause in the Report of the first Grand Committee was postponed.
Elseworth. In order to carry into effect the principle
established, moved that to add to the last clause adopted by the House the
words following,
[pg 344]
"and that the rule of contribution by direct taxation for the support of
the Government of the U. States shall be the number of white inhabitants,
and three fifths of every other description in the several States, until
some other rule that shall more accurately ascertain the wealth of the
several States can be devised and adopted by the Legislature."
Butler seconded the motion in order that it might be
committed.
Randolph was not satisfied with the motion. The danger will
be revived that the ingenuity of the Legislature may evade or pervert the
rule so as to perpetuate the power where it shall be lodged in the first
instance. He proposed in lieu of M
Elseworth's motion,
"that in order to ascertain the alterations in Representation that may be
required from time to time by changes in the relative circumstances of the
States, a Census shall be taken within two years from the 1
st
meeting of the Gen
Legislature of the U.S. and once
within the term of every —— year afterwards, of all the
inhabitants in the manner & according to the ratio recommended by
Congress in their resolution of the 18
th
day of Ap
1783, (rating the blacks at 3/5 of their number) and that the Legislature
of the U. S. shall arrange the Representation accordingly." He urged
strenuously that express security ought to be provided for including
slaves in the ratio of Representation. He lamented that such a species of
property existed. But as it did exist the holders of it would require this
security. It was perceived that the design was entertained by some of
excluding slaves altogether; the Legislature therefore ought not to be
left at liberty.
Elseworth withdraws his motion & seconds that of M
Randolph.
Wilson observed that less umbrage would perhaps be taken ag
st
an admission of the slaves into the Rule of representation, if it should
be so expressed as
[pg 345]
to make them indirectly only an ingredient in the rule, by saying that
they should enter into the rule of taxation; and as representation was to
be according to taxation, the end would be equally attained. He
accordingly moved & was 2
ded
so to alter the last clause
adopted by the House, that together with the amendment proposed the whole
should read as follows—provided always that the representation ought
to be proportioned according to direct taxation, and in order to ascertain
the alterations in the direct taxation which may be required from time to
time by the changes in the relative circumstances of the States, Resolved
that a census be taken within two years from the first meeting of the
Legislature of the U. States, and once within the term of every ——
years afterwards of all the inhabitants of the U.S. in the manner and
according to the ratio recommended by Congress in their Resolution of
April 18. 1783; and that the Legislature of the U.S. shall proportion
the direct taxation accordingly.
King. Altho' this amendment varies the aspect somewhat,
he had still two powerful objections ag
st
tying down the
Legislature to the rule of numbers. 1. they were at this time an uncertain
index of the relative wealth of the States. 2. if they were a just index
at this time it can not be supposed always to continue so. He was far from
wishing to retain any unjust advantage whatever in one part of the
Republic. If justice was not the basis of the connection it could not be
of long duration. He must be shortsighted indeed who does not foresee that
whenever the Southern States shall be more numerous than the Northern,
they can & will hold a language that will awe them into justice. If
they threaten to separate now in case injury shall be done them, will
their threats be less urgent or effectual, when force shall back their
demands. Even in the
[pg 346]
intervening period, there will be no point of time at which they will not
be able to say, do us justice or we will separate. He urged the necessity
of placing confidence to a certain degree in every Gov
and did
not conceive that the proposed confidence as to a periodical readjustment
of the representation exceeded that degree.
Pinkney moved to amend M
Randolph's motion
so as to make "blacks equal to the whites in the ratio of representation."
This he urged was nothing more than justice. The blacks are the labourers,
the peasants of the Southern States: they are as productive of pecuniary
resources as those of the Northern States. They add equally to the wealth,
and considering money as the sinew of war, to the strength of the nation.
It will also be politic with regard to the Northern States, as taxation is
to keep pace with Representation.
Gen
Pinkney moves to insert 6 years instead of two, as the
period computing from the 1
st
meeting of y
Legis
within which the first census should be taken. On this question for
inserting six, instead of "two" in the proposition of M
Wilson, it passed in the affirmative
Mass
ts
no. C
ay. N. J. ay. P
ay.
Del. div
. May
ay. V
no.
N. C. no. S. C. ay. Geo. no.
On a question for filling the blank for y
periodical census
with 20 years, it passed in the negative
Mass
ts
no. C
ay. N. J. ay. P. ay.
Del. no. M
no. V
no. N. C. no.
S. C. no. Geo. no.
On a question for 10 years, it passed in the affirmative.
Mass. ay. Con
no. N. J. no. P. ay.
Del. ay. M
ay. V
ay. N. C. ay.
S. C. ay. Geo. ay.
On M
Pinkney's motion for rating blacks as equal to Whites
instead of as 3/5.
Mass. no. Con
no. (D
Johnson ay) N. J. no.
[pg 347]
no. (3 ag
st
2.) Del. no. M
no.
no. N. C. no. S. C. ay. Geo—ay.
Randolph's proposition as varied by M
Wilson
being read for question on the whole—
Gerry, urged that the principle of it could not be carried
into execution as the States were not to be taxed as States. With regard
to taxes in imposts, he conceived they would be more productive Where
there were no slaves than where there were; the consumption being greater—
Elseworth. In case of a poll tax there w
be no
difficulty. But there w
probably be none. The sum allotted to
a State may be levied without difficulty according to the plan used by the
State in raising its own supplies. On the question of y
whole
proposition; as proportioning representation to direct taxation & both
to the white & 3/5 of black inhabitants, & requiring a Census
within six years—& within every ten years afterwards.
Mass. div
. Con
ay. N. J. no.
ay. Del. no. M
ay. V
ay.
N. C. ay. S. C. div
. Geo. ay.
Friday, July 13. In Convention.
It being moved to postpone the clause in the Report of the Committee of
Eleven as to the originating of money bills in
the first
branch, in
order to take up the following—"that in the 2
branch
each State shall have an equal voice,"
Gerry, moved to add as an amendment to the last clause
agreed to by the House, "that from the first meeting of the Legislature of
the U.S. till a census shall be taken all monies to be raised for
supplying the public Treasury by direct taxation shall be assessed on the
inhabitants of the several States according to the number of their
Representatives respectively in the 1
st
branch." He said this
would be as just before as after the Census; according
[pg 348]
to
the general principle that taxation & Representation ought to go
together.
Williamson feared that N. Hampshire will have reason to
complain. 3 members were allotted to her as a liberal allowance, for this
reason among others, that she might not suppose any advantage to have been
taken of her absence. As she was still absent, and had no opportunity of
deciding whether she would chuse to retain the number on the condition, of
her being taxed in proportion to it, he thought the number ought to be
reduced from three to two, before the question was taken on M
G's motion.
Read could not approve of the proposition. He had observed
he said in the Committee a backwardness in some of the members from the
large States, to take their full proportion of Representatives. He did not
then see the motive. He now suspects it was to avoid their due share of
taxation. He had no objection to a just & accurate adjustment of
Representation & taxation to each other.
Gov
Morris & M
Madison answered
that the charge itself involved an acquittal; since notwithstanding the
augmentation of the number of members allotted to Mass
ts
the motion for proportioning the burdens thereto was made by
a member from the former State & was approved by M
M. from
the latter who was on the Com
. M
Gov
Morris said that he thought P
had her due share in 8 members;
and he could not in candor ask for more. M
M. said that having
always conceived that the difference of interest in the U. States lay not
between the large & small, but the N. & South
States, and finding that the number of members allotted to the N. States
was greatly superior, he should have preferred, an addition of two members
to the S. States, to wit one to N. & 1 to S. Carl
rather than of one member to Virg
. He liked the present
motion, because it tended to moderate the
[pg 349]
views both of the
opponents & advocates for rating very high, the negroes.
Elseworth hoped the proposition would be withdrawn. It
entered too much into detail. The general principle was already
sufficiently settled. As fractions can not be regarded in apportioning the
of representatives
, the rule will be unjust, until an
actual census shall be made. After that taxation may be precisely
proportioned according to the principle established, to the
number of
inhabitants
Wilson hoped the motion would not be withdrawn. If it sh
it will be made from another quarter. The rule will be as reasonable &
just before, as after a Census. As to fractional numbers, the Census will
not destroy, but ascertain them. And they will have the same effect after
as before the Census; for as he understands the rule, it is to be adjusted
not to the number of
inhabitants
, but of
Representatives
Sherman opposed the motion. He thought the Legislature ought
to be left at liberty: in which case they would probably conform to the
principles observed by Cong
Mason did not know that Virg
would be a loser by
the proposed regulation, but had some scruple as to the justice of it. He
doubted much whether the conjectural rule which was to precede the Census,
would be as just, as it would be rendered by an actual census.
Elseworth & M
Sherman moved to postpone the
motion of M
Gerry. On y
question, it passed in the
negative. Mass. no. Con
ay. N. J. ay. P
no. Del. ay. M
ay. V
no. N. C. no.
S. C. no. Geo. no.
Question on M
Gerry's motion, it passed in the negative,
the States being equally divided.
Mass. ay. Con
no. N. J. no.
ay.
Del. no. M
no.
no.
N. C. ay.
S. C. ay. Geo. ay.
[pg 350]
Gerry finding that the loss of the question had proceeded
from an objection with some, to the proposed assessment of direct taxes on
the
inhabitants
of the States, which might restrain the Legislature
to a poll tax, moved his proposition again, but so varied as to authorize
the assessment on the
States
, which leaves the mode to the
Legislature, viz "that from the 1
st
meeting of the Legislature
of the U. S. untill a census shall be taken, all monies for supplying
the public Treasury by direct taxation shall be raised from the said
several States according to the number of their representatives
respectively in the 1
st
branch."
On this varied question, it passed in the affirmative
Mas. ay. Con
no. N. J. no.
div
Del. no. M
no.
ay
N. C. ay.
S. C. ay. Geo. ay.
On the motion of M
Randolph, the vote of saturday last
authorizing the Legisl
re
to adjust from time to time, the
representation upon the principles of
wealth
& numbers of
inhabitants, was reconsidered by common consent in order to strike out
"Wealth" and adjust the resolution to that requiring periodical revisions,
according to the number of whites & three fifths of the blacks: the
motion was in the words following:—"But as the present situation of
the States may probably alter in the number of their inhabitants, that the
Legislature of the U. S. be authorized from time to time to apportion
the number of representatives; and in case any of the States shall
hereafter be divided or any two or more States united or new States
created within the limits of the U. S. the Legislature of U. S. shall
possess authority to regulate the number of Representatives in any of the
foregoing cases, upon the principle of their number of inhabitants;
according to the provisions hereafter mentioned."
Gov
Morris opposed the alteration as leaving
[pg 351]
still incoherence. If Negroes were to be viewed as inhabitants, and the
revision was to proceed on the principle of numbers of inhab
ts
they ought to be added in their entire number, and not in the proportion
of 3/5. If as property, the word wealth was right, and striking it out
would produce the very inconsistency which it was meant to get rid of.—The
train of business & the late turn which it had taken, had led him he
said, into deep meditation on it, and He w
candidly state the
result. A distinction had been set up & urged, between the N
and South
States. He had hitherto considered this doctrine as
heretical. He still thought the distinction groundless. He sees however
that it is persisted in, and the South
Gentlemen will not be
satisfied unless they see the way open to their gaining a majority in the
public Councils. The consequence of such a transfer of power from the
maritime to the interior & landed interest will he foresees be such an
oppression of commerce that he shall be obliged to vote for y
vicious principle of equality in the 2
branch in order to
provide some defence for the N. States ag
st
it. But to
come more to the point; either this distinction is fictitious or real; if
fictitious let it be dismissed & let us proceed with due confidence.
If it be real, instead of attempting to blend incompatible things, let us
at once take a friendly leave of each other. There can be no end of
demands for security if every particular interest is to be entitled to it.
The Eastern States may claim it for their fishery, and for other objects,
as the South
States claim it for their peculiar objects. In
this struggle between the two ends of the Union, what part ought the
middle States in point of policy to take: to join their Eastern brethren
according to his ideas. If the South
States get the power into
their hands, and be joined as they will be with the interior Country, they
will inevitably bring on a war with Spain for the Mississippi. This
language
[pg 352]
is already held. The interior Country having no property nor interest
exposed on the sea, will be little affected by such a war. He wished to
know what security the North
& middle States will have ag
st
this danger. It has been said that N. C. S. C., and Georgia only
will in a little time have a majority of the people of America. They must
in that case include the great interior Country, and every thing was to be
apprehended from their getting the power into their hands.
Butler. The security the South
States want is
that their negroes may not be taken from them, which some gentlemen within
or without doors, have a very good mind to do. It was not supposed that N. C.
S. C. & Geo. would have more people than all the other States,
but many more relatively to the other States than they now have. The
people & strength of America are evidently bearing Southwardly &
S. westw
dly
Wilson. If a general declaration would satisfy any gentleman
he had no indisposition to declare his sentiments. Conceiving that all men
wherever placed have equal rights and are equally entitled to confidence,
he viewed without apprehension the period when a few States should contain
the superior number of people. The majority of people wherever found ought
in all questions to govern the minority. If the interior Country should
acquire this majority, it will not only have the right, but will avail
itself of it whether we will or no. This jealousy misled the policy of G.
Britain with regard to America. The fatal maxims espoused by her were that
the Colonies were growing too fast, and that their growth must be stinted
in time. What were the consequences?, first, enmity on our part, then
actual separation. Like consequences will result on the part of the
interior settlements, if like jealousy & policy be pursued on ours.
Further, if numbers be not a proper
[pg 353]
rule, why is not some better rule
pointed out. No one has yet ventured to attempt it. Cong
have
never been able to discover a better. No State as far as he had heard, had
suggested any other. In 1783, after elaborate discussion of a measure of
wealth all were satisfied then as they are now that the rule of numbers,
does not differ much from the combined rule of numbers & wealth. Again
he could not agree that property was the sole or primary object of Gov
& society. The cultivation & improvement of the human mind was the
most noble object. With respect to this object, as well as to other
personal
rights, numbers were surely the natural & precise measure of
Representation. And with respect to property, they could not vary much
from the precise measure. In no point of view however could the establishm
of numbers as the rule of representation in the 1
st
branch vary
his opinion as to the impropriety of letting a vicious principle into the
branch.—On the Question to strike out
Wealth
& to make the change as moved by M
Randolph, it passed in
the affirmative.
Mas. ay. Con
ay. N. J. ay. P
ay.
Del div
. M
ay. V
ay. N. C. ay.
S. C. ay. Geo. ay.
Reed moved to insert after the word "divided," "or enlarged
by addition of territory" which was agreed to nem con. (his object
probably was to provide for such cases as an enlargem
of
Delaware by annexing to it the Peninsula on the East side of the
Chesapeak.)
Adjourned.
Saturday, July 14. in Convention.
L. Martin called for the question on the whole report,
including the parts relating to the origination of money bills, and the
equality of votes in the 2
branch.
Gerry, wished before the question should be
[pg 354]
put, that the attention of the House might be turned to the dangers
apprehended from Western States. He was for admitting them on liberal
terms, but not for putting ourselves in their hands. They will if they
acquire power like all men, abuse it. They will oppress commerce, and
drain our wealth into the Western Country. To guard ag
st
these
consequences, he thought it necessary to limit the number of new States to
be admitted into the Union, in such a manner, that they should never be
able to outnumber the Atlantic States. He accordingly moved "that in order
to secure the liberties of the States already confederated, the number of
Representatives in the 1
st
branch, of the States which shall
hereafter be established, shall never exceed in number, the
Representatives from such of the States as shall accede to this
Confederation.
King, seconded the motion.
Sherman, thought there was no probability that the number of
future States would exceed that of the Existing States. If the event
should ever happen, it was too remote to be taken into consideration at
this time. Besides We are providing for our posterity, for our children
& our grand Children; who would be as likely to be citizens of new
Western States, as of the old States. On this consideration alone, we
ought to make no such discrimination as was proposed by the motion.
Gerry. If some of our children should remove, others will
stay behind, and he thought it incumbent on us to provide for their
interests. There was a rage for emigration from the Eastern States to the
Western Country, and he did not wish those remaining behind to be at the
mercy of the emigrants. Besides foreigners are resorting to that Country,
and it is uncertain what turn things may take there.—On the question
for agreeing to the Motion of M
Gerry, it passed in the
negative.
[pg 355]
Mass. ay. Con
ay. N. J. no. P
div
Del. ay. M
ay. V
no. N. C. no.
S. C. no. Geo. no.
Rutlidge proposed to reconsider the two propositions
touching the originating of money bills in the first & the equality of
votes in the second branch.
Sherman was for the question on the whole at once. It was he
said a conciliatory plan, it had been considered in all its parts, a great
deal of time had been spent upon it, and if any part should now be
altered, it would be necessary to go over the whole ground again.
L. Martin urged the question on the whole. He did not like
many parts of it. He did not like having two branches, nor the inequality
of votes in the 1
st
branch. He was willing however to make
trial of the plan, rather than do nothing.
Wilson traced the progress of the report through its several
stages, remarking y
when on the question concerning an
equality of votes, the House was divided, our Constituents had they voted
as their representatives did, would have stood as 2/3 ag
st
the
equality, and 1/3 only in favor of it. This fact would ere long be known,
and it will appear that this fundamental point has been carried by 1/3 ag
st
2/3. What hopes will our Constituents entertain when they find that the
essential principles of justice have been violated in the outset of the
Governm
. As to the privilege of originating money bills, it
was not considered by any as of much moment, and by many as improper in
itself. He hoped both clauses w
be reconsidered. The equality
of votes was a point of such critical importance, that every opportunity
ought to be allowed, for discussing and collecting the mind of the
Convention upon it.
L. Martin denies that there were 2/3 ag
st
the
equality of votes. The States that please to call themselves large, are
the weakest in the Union. Look at Mas
ts
. Look at Virg
Are they efficient States?
[pg 356]
He was for letting a separation take
place if they desired it. He had rather there should be two Confederacies,
than one founded on any other principle than an equality of votes in the 2
branch at least.
Wilson was not surprised that those who say that a minority
is more than a majority should say the minority is stronger than the
majority. He supposed the next assertion will be that they are richer
also; though he hardly expected it would be persisted in when the States
shall be called on for taxes & troops.
Gerry also animadverted on M
L. Martins remarks
on the weakness of Mas
ts
. He favored the reconsideration with a
view not of destroying the equality of votes; but of providing that the
States should vote per Capita, which he said would prevent the delays
& inconveniences that had been experienced in Cong
and
would give a national aspect & Spirit to the management of business.
He did not approve of a reconsideration of the clause relating to money
bills. It was of great consequence. It was the corner stone of the
accommodation. If any member of the Convention had the exclusive privilege
of making propositions, would any one say that it would give him no
advantage over other members. The Report was not altogether to his mind.
But he would agree to it as it stood rather than throw it out altogether.
The reconsideration being tacitly agreed to
Pinkney moved that instead of an equality of votes, the
States should be represented in the 2
branch as follows: N. H.
by 2 members. Mass. 4. R. I. 1. Con
3. N. Y. 3. N. J.
2. P
4. Del. 1; M
3. Virg
5. N. C.
3. S. C. 3. Geo. 2. making in the whole 36.
Wilson seconds the motion
Dayton. The smaller States can never give up
[pg 357]
their equality. For himself he would in no event yield that security for
their rights.
Sherman, urged the equality of votes not so much as a
Security for the small States; as for the State Gov
ts
which
could not be preserved unless they were represented & had a negative
in the Gen
Government. He had no objection to the members in
the 2
b. voting per capita, as had been suggested by (M
Gerry).
Madison concurred in this motion of M
Pinkney as
a reasonable compromise.
Gerry said he should like the motion, but could see no hope
of success. An accommodation must take place, and it was apparent from
what had been seen that it could not do so on the ground of the motion. He
was utterly against a partial confederacy, leaving other States to accede
or not accede, as had been intimated.
King said it was always with regret that he differed from
his colleagues, but it was his duty to differ from (M
Gerry)
on this occasion. He considered the proposed Government as substantially
and formally, a General and National Government over the people of
America. There never will be a case in which it will act as a federal
Government on the States and not on the individual Citizens. And is it not
a clear principle that in a free Gov
those who are to be the
objects of a Gov
ought to influence the operations of it? What
reason can be assigned why the same rule of representation s
not prevail in the 2
branch as in the 1
st
.? He
could conceive none. On the contrary, every view of the subject that
presented itself, seemed to require it. Two objections had been raised ag
st
it, drawn 1. from the terms of the existing compact. 2. from a supposed
danger to the smaller States.—As to the first objection he thought
it inapplicable. According to the existing Confederation, the rule by
which the public burdens is to be
[pg 358]
apportioned is
fixed
, and
must be pursued. In the proposed Govern
it cannot be fixed,
because indirect taxation is to be substituted. The Legislature therefore
will have full discretion to impose taxes in such modes & proportions
as they may judge expedient. As to the 2
objection, he thought
it of as little weight. The Gen
Govern
can never
wish to intrude on the State Govern
ts
. There could be no
temptation. None had been pointed out. In order to prevent the
interference of measures which seemed most likely to happen, he would have
no objection to throwing all the State debts into the federal debt, making
one aggregate debt of about 70,000,000 of dollars, and leaving it to be
discharged by the Gen
Gov
. According to the idea
of securing the State Gov
ts
there ought to be three distinct
legislative branches. The 2
was admitted to be necessary, and
was actually meant, to check the 1
st
branch, to give more
wisdom, system, & stability to the Gov
and ought clearly
as it was to operate on the people, to be proportioned to them. For the
third purpose of securing the States, there ought then to be a 3
branch, representing the States as such, and guarding by equal votes their
rights & dignities. He would not pretend to be as thoroughly
acquainted with his immediate Constituents as his colleagues, but it was
his firm belief that Mas
ts
would never be prevailed on to yield
to an equality of votes. In N. York, (he was sorry to be obliged to
say any thing relative to that State in the absence of its
representatives, but the occasion required it), in N. York he had
seen that the most powerful argument used by the considerate opponents to
the grant of the Impost to Congress, was pointed ag
st
the
vicious constitution of Cong
with regard to representation
& suffrage. He was sure that no Gov
could last that was
not founded on just principles. He preferred the doing of nothing, to an
allowance of an equal vote to all the States. It
[pg 359]
would be better he
thought to submit to a little more confusion & convulsion, than to
submit to such an evil. It was difficult to say what the views of
different Gentlemen might be. Perhaps there might be some who thought no
Governm
co-extensive with the U. States could be established
with a hope of its answering the purpose. Perhaps there might be other
fixed opinions incompatible with the object we are pursuing. If there
were, he thought it but candid that Gentlemen should speak out that we
might understand one another.
Strong. The Convention had been much divided in opinion. In
order to avoid the consequences of it, an accommodation had been proposed.
A Committee had been appointed: and though some of the members of it were
averse to an equality of votes, a Report had been made in favor of it. It
is agreed on all hands that Congress are nearly at an end. If no
Accommodation takes place, the Union itself must soon be dissolved. It has
been suggested that if we cannot come to any general agreement, the
principal States may form & recommend a Scheme of Government. But will
the small States in that case ever accede it. Is it probable that the
large States themselves will under such circumstances embrace and ratify
it. He thought the small States had made a considerable concession in the
article of money bills, and that they might naturally expect some
concessions on the other side. From this view of the matter he was
compelled to give his vote for the Report taken altogether.
Madison expressed his apprehensions that if the proper
foundation of Governm
was destroyed, by substituting an
equality in place of a proportional Representation, no proper
superstructure would be raised. If the small States really wish for a
Government armed with the powers necessary to secure their liberties, and
to enforce obedience on the larger
[pg 360]
members as well as themselves he
could not help thinking them extremely mistaken in their means. He
reminded them of the consequences of laying the existing Confederation on
improper principles. All the principal parties to its compilation joined
immediately in mutilating & fettering the Governm
in such
a manner that it has disappointed every hope placed in it. He appealed to
the doctrine & arguments used by themselves on a former occasion. It
had been very properly observed by (M
Patterson) that
Representation was an expedient by which the meeting of the people
themselves was rendered unnecessary; And that the representatives ought
therefore to bear a proportion to the votes which their constituents if
convened would respectively have. Was not this remark as applicable to one
branch of the Representation as to the other? But it had been said that
the Govern
would in its operation be partly federal, partly
national; that altho' in the latter respect the Representatives of the
people ought to be in proportion to the people; yet in the former it ought
to be according to the number of States. If there was any solidity in this
distinction he was ready to abide by it, if there was none it ought to be
abandoned. In all cases where the Gen
Governm
is
to act on the people, let the people be represented and the votes be
proportional. In all cases where the Govern
is to act on the
States as such in like manner as Cong
now acts on them, let
the States be represented & the votes be equal. This was the true
ground of compromise if there was any ground at all. But he denied that
there was any ground. He called for a single instance in which the Gen
Gov
was not to operate on the people individually. The
practicability of making laws, with coercive sanctions, for the States as
Political bodies, had been exploded on all hands. He observed that the
people of the large States would in some way or
[pg 361]
other secure to
themselves a weight proportioned to the importance accruing from their
superior numbers. If they could not effect it by a proportional
representation in the Gov
they would probably accede to no Gov
which did not in a great measure depend for its efficacy on their
voluntary cooperation; in which case they would indirectly secure their
object. The existing confederacy proved that where the Acts of the Gen
Gov
were to be executed by the particular Gov
ts
the
latter had a weight in proportion to their importance. No one would say
that either in Cong
or out of Cong
. Delaware had
equal weight with Pennsylv
. If the latter was to supply ten
times as much money as the former, and no compulsion could be used, it was
of ten times more importance, that she should voluntarily furnish the
supply. In the Dutch confederacy the votes of the Provinces were equal.
But Holland which supplies about half the money, governed the whole
republic. He enumerated the objections ag
st
an equality of
votes in the 2
branch, notwithstanding the proportional
representation in the first. 1. the minority could negative the will of
the majority of the people. 2. they could extort measures by making them a
condition of their assent to other necessary measures. 3. they could
obtrude measures on the majority by virtue of the peculiar powers which
would be vested in the Senate. 4. the evil instead of being cured by time,
would increase with every new State that should be admitted, as they must
all be admitted on the principle of equality. 5. the perpetuity it would
give to the preponderance of the North
ag
st
the
South
Scale was a serious consideration. It seemed now to be
pretty well understood that the real difference of interests lay, not
between the large & small but between the N. & South
States. The institution of slavery & its consequences formed the line
of discrimination. There were 5 States on the South, 8 on
[pg 362]
the North
side of this line. Should a proport
representation take place it was true, the N. side would still
outnumber the other; but not in the same degree, at this time; and every
day would tend towards an equilibrium.
Wilson would add a few words only. If equality in the 2
branch was an error that time would correct, he should be less anxious to
exclude it being sensible that perfection was unattainable in any plan;
but being a fundamental and a perpetual error, it ought by all means to be
avoided. A vice in the Representation, like an error in the first
concoction, must be followed by disease, convulsions, and finally death
itself. The justice of the general principle of proportional
representation has not in argument at least been yet contradicted. But it
is said that a departure from it so far as to give the States an equal
vote in one branch of the Legislature is essential to their preservation.
He had considered this position maturely, but could not see its
application. That the States ought to be preserved he admitted. But does
it follow that an equality of votes is necessary for the purpose? Is there
any reason to suppose that if their preservation should depend more on the
large than on the small States the security of the States ag
st
the Gen
Government would be diminished? Are the large States
less attached to their existence more likely to commit suicide, than the
small? An equal vote then is not necessary as far as he can conceive: and
is liable among other objections to this insuperable one: The great fault
of the existing confederacy is its inactivity. It has never been a
complaint ag
st
Cong
that they governed over much.
The complaint has been that they have governed too little. To remedy this
defect we were sent here. Shall we effect the cure by establishing an
equality of votes as is proposed? no: this very equality carries us
directly to Congress; to the
[pg 363]
system which it is our duty to
rectify. The small States cannot indeed act, by virtue of this equality,
but they may controul the Gov
as they have done in Cong
This very measure is here prosecuted by a minority of the people of
America. Is then the object of the Convention likely to be accomplished in
this way? Will not our Constituents say? we sent you to form an efficient
Gov
and you have given us one more complex indeed, but having
all the weakness of the former govern
. He was anxious for
uniting all the States under one Govern
. He knew there were
some respectable men who preferred three confederacies, united by
offensive & defensive alliances. Many things may be plausibly said,
some things may be justly said, in favor of such a project. He could not
however concur in it himself; but he thought nothing so pernicious as bad
first principles.
Elseworth asked two questions, one of M
Wilson,
whether he had ever seen a good measure fail in Cong
for want
of a majority of States in its favor? He had himself never known such an
instance: the other of M
Madison whether a negative lodged
with the majority of the States even the smallest, could be more dangerous
than the qualified negative proposed to be lodged in a single Executive
Magistrate, who must be taken from some one State?
Sherman, signified that his expectation was that the Gen
Legislature would in some cases act on the
federal principle
, of
requiring quotas. But he thought it ought to be empowered to carry their
own plans into execution, if the States should fail to supply their
respective quotas.
On the question for agreeing to M
Pinkney's motion for
allowing N. H. 2. Mas. 4. &c—it passed in the negative,
Mass. no. M
King ay. M
Ghorum absent. Con
[pg 364]
no. N. J. no. P
ay. Del. no. M
ay.
ay. N. C. no. S. C. ay. Geo. no.
Adjourned.
[132]
[132]
"Memorandum. "July 15, '87.
"About twelve days since the Convention appointed a Grand Comee,
consisting of Gerry, Ellsworth, Yates, Paterson, Franklin, Bedford,
Martin, Mason, Rutledge & Baldwin to adjust the Representation in
the two Brs. of the Legislature of the U. S. They reported yt.
every 40,000 Inhabs. taken agreeably to the Resolution of Cong. of ye
18 Ap. 1783, shd. send one member to the first Br. of the Legislature,
yt. this Br. shd. originate exclusively Money Bills, & also
originate ye appropriations of money; and that in ye Senate or upper
Br. each State shd. have one vote & no more. The Representation as
to the first Br. was twice recommitted altho' not to the same
Committee; finally it was agreed yt Taxation of the direct sort &
Representation shd. be in direct proportion with each other—that
the first Br. shd. consist of 65 members, viz. N. H. 3, M. 8, R.
I. 1, C. 5, N. Y. 6, N. J. 4, P. 8, D. 1, M. 6, V. 10, N. C.
5, S. C. 5, G. 3,—and that the origination of money Bills
and the Appropriations of money shd. belong in the first instance to
yt. Br., but yt in the Senate or 2nd Br. each State shd. have an equal
Vote. In this situation of the Report it was moved by S. Car.
that in the formation of the 2nd Br., instead of an equality of Votes
among the States, that N. H. shd. have 2, M. 4, R. I. 1, C. 3, N. Y.
3, N. J. 2, P. 4, D. 1, M. 3, V. 5, N. C. 3, S. C. 3,
G. 2 = total 36.
"On the question to agree to this apportionment, instead of the
equality (Mr. Gorham being absent) Mass., Con., N. Jer., Del., N. Car.,
& Georg—No. Penn., Mar., Virg. & S. Car. Aye.
"This Question was taken and to my mortification by the vote of Mass.
lost on the 14th July.
"(endorsed 'inequality lost by vote of Mass.')"—King's
Note, King's
Life and Correspondence of Rufus King
, I.,
615.
Monday, July 16. In Convention.
On the question for agreeing to the whole Report as amended &
including the equality of votes in the 2
branch, it passed in
the affirmative.
Mass. divided M
Gerry, M
Strong. ay. M
King, M
Ghorum no. Con
ay. N. J. ay.
Pen
no. Del.
[pg 365]
ay. M
ay. V
no.
N. C. ay. M
Spraight no. S. C. no. Geo. no.
The whole thus passed is in the words following, viz. "Resolved, that in
the original formation of the Legislature of the U. S. the first
branch thereof shall consist of sixty five members, of which number N. Hampshire
shall send 3. Mass
ts
8. Rh. I. 1. Conn
5. N. Y.
6. N. J. 4. Pen
8. Del. 1. Mary
6. Virg
10. N. C. 5. S. C. 5. Geo. 3.—But as the present situation
of the States may probably alter in the number of their inhabitants, the
Legislature of the U. S. shall be authorized from time to time to
apportion the number of Rep
and in case any of the States
shall hereafter be divided, or enlarged by addition of territory, or any
two or more States united, or any new States created within the limits of
the U. S. the Legislature of the U. S. shall possess authority
to regulate the number of Rep
in any of the foregoing cases,
upon the principle of their number of inhabitants, according to the
provisions hereafter mentioned. namely—provided always that
representation ought to be proportioned according to direct taxation; and
in order to ascertain the alteration in the direct taxation, which may be
required from time to time by the changes in the relative circumstances of
the States—
Resolved, that a Census be taken within six years from the 1
st
meeting of the Legislature of the U. S., and once within the term of every
10 years afterwards of all the inhabitants of the U. S. in the manner
and according to the ratio recommended by Congress in their Resolution of
April 18. 1783, and that the Legislature of the U. S. shall
proportion the direct taxation accordingly—
Resolved, that all bills for raising or appropriating money, and for
fixing the salaries of officers of the Gov
of the U. S. shall
originate in the first branch of the Legislature of the U. S. and
shall not be altered
[pg 366]
or amended in the 2
branch: and that no money shall be drawn
from the Public Treasury, but in pursuance of appropriations to be
originated in the 1
st
branch.
Resolv
, that in the 2
branch of the
Legislature of the U. S., each State shall have an equal vote.
The 6
th
Resol: in the Report from the Com
of the
whole House, which had been postponed in order to consider the 7 & 8
th
Resol
ns
.; was now resumed. see the Resol
The 1
st
member "That the Nat
Legislature ought to
possess the Legislative Rights vested in Cong
by the
Confederation" was agreed to nem. con.
The next, "And moreover to legislate in all cases to which the separate
States are incompetent; or in which the harmony of the U. S. may be
interrupted by the exercise of individual legislation," being read for a
question.
Butler calls for some explanation of the extent of this
power; particularly of the word
incompetent
. The vagueness of the
terms rendered it impossible for any precise judgment to be formed.
Ghorum. The vagueness of the terms constitutes the propriety
of them. We are now establishing general principles, to be extended
hereafter into details which will be precise & explicit.
Rutlidge, urged the objection started by M
Butler and moved that the clause should be committed to the end that a
specification of the powers comprised in the general terms, might be
reported.
On the question for commitment, the States were equally divided
Mas. no. Con
ay. N. J. no. P
no.
Del. no. M
ay. V
ay. N. C. no.
S. C. ay. Geo. ay: So it was lost.
Randolph. The vote of this morning (involving an equality of
suffrage in 2
branch) had embarrassed
[pg 367]
the business
extremely. All the powers given in the Report from the Com
of
the whole, were founded on the supposition that a Proportional
representation was to prevail in both branches of the Legislature. When he
came here this morning his purpose was to have offered some propositions
that might if possible have united a great majority of votes, and
particularly might provide ag
st
the danger suspected on the
part of the smaller States, by enumerating the cases in which it might
lie, and allowing an equality of votes in such cases.
[133]
But finding from the
Preceding vote that they persist in demanding an equal vote in all cases,
that they have succeeded in obtaining it, and that N. York, if
present would probably be on the same side, he could not but think we were
unprepared to discuss this subject further. It will probably be in vain to
come to any final decision with a bare majority on either side. For these
reasons he wished the Convention might adjourn, that the large States
might consider the steps proper to be taken in the present solemn crisis
of the business, and that the small States might also deliberate on the
means of conciliation.
[133]
See the
paper, in the appendix, com̃unicated by M
R. to J. M.
July 10.—Note in Madison's hand.
Patterson, thought with M
R. that it was high
time for the Convention to adjourn that the rule of secrecy ought to be
rescinded, and that our Constituents should be consulted. No conciliation
could be admissible on the part of the smaller States on any other ground
than that of an equality of votes in the 2
branch. If M
Randolph would reduce to form his motion for an adjournment sine die, he
would second it with all his heart.
Gen
Pinkney wished to know of M
R. whether he
meant an adjournment sine die, or only an adjournment for the day. If the
former was meant, it differed
[pg 368]
much from his idea. He could not
think of going to S. Carolina and returning again to this place.
Besides it was chimerical to suppose that the States if consulted would
ever accord separately, and beforehand.
Randolph, had never entertained an idea of an adjournment
sine die; & was sorry that his meaning had been so readily &
strangely misinterpreted. He had in view merely an adjournment till
to-morrow, in order that some conciliatory experiment might if possible be
devised, and that in case the smaller States should continue to hold back,
the larger might then take such measures, he would not say what, as might
be necessary.
Patterson seconded the adjournment till to-morrow, as an
opportunity seemed to be wished by the larger States to deliberate further
on conciliatory expedients.
On the question for adjourning till tomorrow, the States were equally
divided,
Mas. no. Con
no. N. J. ay. P
ay.
Del. no. M
ay. V
ay. N. C. ay.
S. C. no. Geo. no, so it was lost.
Broome thought it his duty to declare his opinion ag
st
an adjournment sine die, as had been urged by M
Patterson.
Such a measure he thought would be fatal. Something must be done by the
Convention, tho' it should be by a bare majority.
Gerry observed that Mas
ts
was opposed to an
adjournment, because they saw no new ground of compromise. But as it
seemed to be the opinion of so many States that a trial sh
be
made, the State would now concur in the adjournm
Rutlidge could see no need of an adjourn
because
he could see no chance of a compromise. The little States were fixt. They
had repeatedly & solemnly declared themselves to be so. All that the
large States then had to do was to decide whether they would yield or not.
For his part he conceived
[pg 369]
that altho' we could not do what
we thought best, in itself, we ought to do something. Had we not better
keep the Gov
up a little longer, hoping that another
Convention will supply our omissions, than abandon every thing to hazard.
Our Constituents will be very little satisfied with us if we take the
latter course.
Randolph & M
King renewed the motion to
adjourn till tomorrow.
On the question. Mas. ay. Con
no. N. J. ay.
ay. Del. no. M
ay. V
ay.
N. C. ay. S. C. ay. Geo. div
Adjourned
On the morning following before the hour of the Convention a number of the
members from the larger States, by common agreement met for the purpose of
consulting on the proper steps to be taken in consequence of the vote in
favor of an equal Representation in the 2
branch, and the
apparent inflexibility of the smaller States on that point. Several
members from the latter States also attended. The time was wasted in vague
conversation on the subject, without any specific proposition or
agreement. It appeared indeed that the opinions of the members who
disliked the equality of votes differed much as to the importance of that
point, and as to the policy of risking a failure of any general act of the
Convention by inflexibly opposing it. Several of them supposing that no
good Governm
could or would be built on that foundation, and
that as a division of the convention into two opinions was unavoidable; it
would be better that the side comprising the principal States, and a
majority of the people of America, should propose a scheme of Gov
to the States, than that a scheme should be proposed on the other side,
would have concurred in a firm opposition to the smaller States, and in a
separate recommendation, if
[pg 370]
eventually necessary. Others seemed
inclined to yield to the smaller States, and to concur in such an Act
however imperfect & exceptionable, as might be agreed on by the
Convention as a body, tho' decided by a bare majority of States and by
a minority of the people of the U. States. It is probable that the result
of this consultation satisfied the smaller States that they had nothing to
apprehend from a Union of the larger, in any plan whatever ag
st
the equality of votes in the 2
branch.
Tuesday July 17. in Convention.
Govern
Morris, moved to reconsider the whole
Resolution agreed to yesterday concerning the constitution of the 2
branches of the Legislature. His object was to bring the House to a
consideration in the abstract of the powers necessary to be vested in the
general Government. It had been said, Let us know how the Gov
is to be modelled, and then we can determine what powers can be properly
given to it. He thought the most eligible course was, first to determine
on the necessary powers, and then so to modify the Govern
as
that it might be justly & properly enabled to administer them. He
feared if we proceeded to a consideration of the powers, whilst the vote
of yesterday including an equality of the States in the 2
branch, remained in force, a reference to it, either mental or expressed,
would mix itself with the merits of every question concerning the powers.—This
motion was not seconded. (It was probably approved by several members who
either despaired of success, or were apprehensive that the attempt would
inflame the jealousies of the smaller States.)
The 6
th
Resol
in the Report of the Com
of the Whole relating to the powers, which had been postponed
[pg 371]
in
order to consider the 7 & 8
th
relating to the constitution
of the Nat
Legislature, was now resumed.
Sherman observed that it would be difficult to draw the line
between the powers of the Gen
Legislature, and those to be
left with the States; that he did not like the definition contained in the
Resolution, and proposed in place of the words "individual legislation"
line 4. inclusive, to insert "to make laws binding on the people of the
United States in all cases which may concern the common interests of the
Union; but not to interfere with the Government of the individual States
in any matters of internal police which respect the Gov
of
such States only, and wherein the general welfare of the U. States is not
concerned."
Wilson 2
ded
the amendment as better expressing
the general principle.
Gov
Morris opposed it. The internal police, as
it would be called & understood by the States ought to be infringed in
many cases, as in the case of paper money & other tricks by which
Citizens of other States may be affected.
Sherman, in explanation of his idea read an enumeration of
powers, including the power of levying taxes on trade, but not the power
of
direct taxation
Gov
Morris remarked the omission, and inferred
that for the deficiencies of taxes on consumption, it must have been the
meaning of Mr. Sherman, that the Gen
Gov
should
recur to quotas & requisitions, which are subversive of the idea of
Gov
Sherman acknowledged that his enumeration did not include
direct taxation. Some provision he supposed must be made for supplying the
deficiency of other taxation, but he had not formed any.
On Question on M
Sherman's motion it passed in the
negative
[pg 372]
Mas. no. Con
ay. N. J. no. P
no.
Del. no. M
ay. V
no. N. C. no.
S. C. no. Geo. no.
Bedford moved that the 2
member of Resolution 6.
be so altered as to read, "and moreover to legislate in all cases for the
general interests of the Union, and also in those to which the States are
severally incompetent, or in which the harmony of the U. States may be
interrupted by the exercise of individual Legislation."
Gov
Morris 2
ds
the motion.
Randolph. This is a formidable idea indeed. It involves the
power of violating all the laws and constitutions of the States, and of
intermeddling with their police. The last member of the sentence is also
superfluous, being included in the first.
Bedford. It is not more extensive or formidable than the
clause as it stands:
no State
being
separately
competent to
legislate for the
general interest
of the Union.
On question for agreeing to M
Bedford's motion it passed
in the affirmative.
Mas. ay. Con
no. N. J. ay. P
ay.
Del. ay. M
ay. V
no. N. C. ay.
S. C. no. Geo. no.
On the sentence as amended, it passed in the affirmative.
Mas. ay. Con
ay. N. J. ay. P
ay.
Del. ay. M
ay. V
ay. N. C. ay.
S. C. no. Geo. no.
The next. "To negative all laws passed by the several States contravening
in the opinion of the Nat: Legislature the articles of Union, or any
treaties subsisting under the authority of y
Union."
Gov
Morris opposed this power as likely to be
terrible to the States, and not necessary, if sufficient Legislative
authority should be given to the Gen
Government.
Sherman thought it unnecessary; as the Courts of the States
would not consider as valid any law
[pg 373]
contravening the Authority of the
Union, and which the legislature would wish to be negatived.
L. Martin considered the power as improper &
inadmissible. Shall all the laws of the States be sent up to the Gen
Legislature before they shall be permitted to operate?
Madison, considered the negative on the laws of the States
as essential to the efficacy & security of the Gen
Gov
The necessity of a general Gov
proceeds from the propensity of
the States to pursue their particular interests in opposition to the
general interest. This propensity will continue to disturb the system,
unless effectually controuled. Nothing short of a negative on their laws
will controul it. They will pass laws which will accomplish their
injurious objects before they can be repealed by the Gen
Legisl
re
or be set aside by the National Tribunals. Confidence
can not be put in the State Tribunals as guardians of the National
authority and interests. In all the States these are more or less depend
on the Legislatures. In Georgia they are appointed annually by the
Legislature. In R. Island the Judges who refused to execute an
unconstitutional law were displaced, and others substituted, by the
Legislature who would be the willing instruments of the wicked &
arbitrary plans of their masters. A power of negativing the improper laws
of the States is at once the most mild & certain means of preserving
the harmony of the system. Its utility is sufficiently displayed in the
British system. Nothing could maintain the harmony & subordination of
the various parts of the empire, but the prerogative by which the Crown,
stifles in the birth every Act of every part tending to discord or
encroachment. It is true the prerogative is sometimes misapplied thro'
ignorance or a partiality to one particular part of y
empire;
but we have not the same reason to fear such misapplications in our
System. As to the sending
[pg 374]
all laws up to the Nat
Legisl: that might be rendered unnecessary by some emanation of the power
into the States, so far at least as to give a temporary effect to laws of
immediate necessity.
Gov
Morris was more & more opposed to the
negative. The proposal of it would disgust all the States. A law that
ought to be negatived will be set aside in the Judiciary departm
and if that security should fail; may be repealed by a Nation
law.
Sherman. Such a power involves a wrong principle, to wit,
that a law of a State contrary to the articles of the Union would if not
negatived, be valid & operative.
Pinkney urged the necessity of the Negative.
On the question for agreeing to the power of negativing laws of States
&c. it passed in the negative.
Mas. ay. C
no. N. J. no. P
no.
Del. no. M
no. V
ay. N. C. ay.
S. C. no. Geo. no.
Luther Martin moved the following resolution "that the
Legislative acts of the U. S. made by virtue & in pursuance of
the articles of Union and all Treaties made & ratified under the
authority of the U. S. shall be the supreme law of the respective
States, as far as those acts or treaties shall relate to the said States,
or their Citizens and inhabitants—& that the Judiciaries of the
several States shall be bound thereby in their decisions, any thing in the
respective laws of the individual States to the contrary notwithstanding"
which was agreed to nem: con:
th
Resol: "that Nat
Executive consist of a single
person," Ag
to nem. con.
"To be chosen by the National Legisl:"
Govern
Morris was pointedly ag
st
his
being so chosen. He will be the mere creature of the Legisl: if appointed
& impeachable by that body. He ought to be elected by the people at
large, by the freeholders of the Country. That difficulties attend
[pg 375]
this mode, he admits. But they have been found superable in N. Y.
& in Con
and would he believed be found so, in the case of
an Executive for the U. States. If the people should elect, they will
never fail to prefer some man of distinguished character, or services;
some man, if he might so speak, of continental reputation. If the
Legislature elect, it will be the work of intrigue, of cabal, and of
faction; it will be like the election of a pope by a conclave of
cardinals; real merit will rarely be the title to the appointment. He
moved to strike out "National Legislature," & insert "citizens of the
U. S."
Sherman thought that the sense of the Nation would be better
expressed by the Legislature, than by the people at large. The latter will
never be sufficiently informed of characters, and besides will never give
a majority of votes to any one man. They will generally vote for some man
in their own State, and the largest State will have the best chance for
the appointment. If the choice be made by the Legisl
re
majority of voices may be made necessary to constitute an election.
Wilson. Two arguments have been urged ag
st
an
election of the Executive Magistrate by the people. 1 the example of
Poland where an Election of the supreme Magistrate is attended with the
most dangerous commotions. The cases he observed were totally dissimilar.
The Polish nobles have resources & dependants which enable them to
appear in force, and to threaten the Republic as well as each other. In
the next place the electors all assemble in one place; which would not be
the case with us. The 2
arg
is that a
majority
of the people would never concur. It might be answered that the
concurrence of a majority of the people is not a necessary principle of
election, nor required as such in any of the States. But allowing the
objection all its force, it may be obviated by the expedient used in Mass
ts
[pg 376]
where the Legislature by majority of voices, decide in case a majority of
people do not concur in favor of one of the candidates. This would
restrain the choice to a good nomination at least, and prevent in a great
degree intrigue & cabal. A particular objection with him ag
st
an absolute election by the Legisl
re
was that the Exec: in that
case would be too dependent to stand the mediator between the intrigues
& sinister views of the Representatives and the general liberties
& interests of the people.
Pinkney did not expect this question would again have been
brought forward: An Election by the people being liable to the most
obvious & striking objections. They will be led by a few active &
designing men. The most populous States by combining in favor of the same
individual will be able to carry their points. The Nat
Legislature being most immediately interested in the laws made by
themselves, will be most attentive to the choice of a fit man to carry
them properly into execution.
Gov
Morris. It is said that in case of an
election by the people the populous States will combine & elect whom
they please. Just the reverse. The people of such States cannot combine.
If there be any combination it must be among their representatives in the
Legislature. It is said the people will be led by a few designing men.
This might happen in a small district. It can never happen throughout the
continent. In the election of a Gov
of N. York, it
sometimes is the case in particular spots, that the activity &
intrigues of little partizans are successful, but the general voice of the
State is never influenced by such artifices. It is said the multitude will
be uninformed. It is true they would be uninformed of what passed in the
Legislative Conclave, if the election were to be made there; but they will
not be uninformed of those great & illustrious characters which have
merited their esteem & confidence. If the
[pg 377]
Executive be chosen
by the Nat
Legislature, he will not be independent on it; and
if not independent, usurpation & tyranny on the part of the
Legislature will be the consequence. This was the case in England in the
last Century. It has been the case in Holland, where their Senates have
engrossed all power. It has been the case every where. He was surprised
that an election by the people at large should ever have been likened to
the polish election of the first Magistrate. An election by the
Legislature will bear a real likeness to the election by the Diet of
Poland. The great must be the electors in both cases, and the corruption
& cabal w
ch
are known to characterize the one would soon
find their way into the other. Appointments made by numerous bodies, are
always worse than those made by single responsible individuals, or by the
people at large.
Col. Mason. It is curious to remark the different language held at
different times. At one moment we are told that the Legislature is
entitled to thorough confidence, and to indefinite power. At another, that
it will be governed by intrigue & corruption, and cannot be trusted at
all. But not to dwell on this inconsistency he would observe that a
Government which is to last ought at least to be practicable. Would this
be the case if the proposed election should be left to the people at
large. He conceived it would be as unnatural to refer the choice of a
proper character for Chief Magistrate to the people, as it would, to refer
a trial of colours to a blind man. The extent of the Country renders it
impossible that the people can have the requisite capacity to judge of the
respective pretensions of the Candidates.
Wilson, could not see the contrariety stated (by Col.
Mason.) The Legisl
re
might deserve confidence in some respects,
and distrust in others. In acts which were to affect them & y
Constituents
[pg 378]
precisely alike confidence was due. In others jealousy was warranted. The
appointment to great offices, where the Legisl
re
might feel
many motives, not common to the public confidence was surely misplaced.
This branch of business it was notorious, was the most corruptly managed
of any that had been committed to legislative bodies.
Williamson, conceived that there was the same difference
between an election in this case, by the people and by the legislature, as
between an app
by lot, and by choice. There are at present
distinguished characters, who are known perhaps to almost every man. This
will not always be the case. The people will be sure to vote for some man
in their own State, and the largest State will be sure to succeed. This
will not be Virg
however. Her slaves will have no suffrage. As
the Salary of the Executive will be fixed, and he will not be eligible a 2
time, there will not be such a dependence on the Legislature as has been
imagined.
Question on an election by the people instead of the Legislature, which
passed in the negative.
Mas. no. Con
no. N. J. no. P
ay.
Del. no. M
no. V
no. N. C. no.
S. C. no. Geo. no.
L. Martin moved that the Executive be chosen by Electors
appointed by the several Legislatures of the individual States.
Broome 2
ds
. On the Question, it passed in the
negative.
Mas. no. Con
no. N. J. no. P
no.
Del. ay. M
ay. V
no. N. C. no.
S. C. no. Geo. no.
On the question on the words, "to be chosen by the Nation
Legislature" it passed unanimously in the affirmative
"For the term of seven years"—postponed nem. con. on motion of M
Houston and Gov. Morris
"to carry into execution the nation
laws"—agreed to nem.
con.
[pg 379]
"to appoint to offices in cases not otherwise provided for,"—agreed
to nem. con.
"to be ineligible a second time"—M
Houston moved to
strike out this clause.
Sherman 2
ds
the motion.
Gov
Morris espoused the motion. The
ineligibility proposed by the clause as it stood tended to destroy the
great motive to good behavior, the hope of being rewarded by a
re-appointment. It was saying to him, make hay while the sun shines.
On the question for striking out, as moved by M
Houston, it
passed in the affirmative
Mas. ay. Con
ay. N. J. ay. P
ay.
Del. no. M
ay. V
no. N. C. no.
S. C. no. Geo. ay.
"For the term of 7 years," resumed.
Broom was for a shorter term since the Executive Magistrate
was now to be re-eligible. Had he remained ineligible a 2
time, he should have preferred a longer term.
Doc
Clurg moved
[134]
to strike out 7 years, and insert "during good behavior." By striking out
the words declaring him not re-eligible, he was put into a situation that
would keep him dependent forever on the Legislature; and he conceived the
independence of the Executive to be equally essential with that of the
Judiciary department.
[134]
The
probable object of this motion was merely to enforce the argument
against the re-eligibility of the Executive magistrate by holding out
a tenure during good behaviour as the alternate for keeping him
independent of the legislature.—Note in Madison's
handwriting.
Gov
Morris 2
ded
the motion. He
expressed great pleasure in hearing it. This was the way to get a good
Government. His fear that so valuable an ingredient would not be attained
had led him to take the part he had done. He was indifferent how the
Executive should be chosen, provided he held his place by this tenure.
[pg 380]
Broome highly approved the motion. It obviated all his
difficulties
Sherman considered such a tenure as by no means safe or
admissible. As the Executive Magistrate is now re-eligible, he will be on
good behavior as far as will be necessary. If he behaves well he will be
continued; if otherwise, displaced, on a succeeding election.
Madison.
[135]
If it be essential to
the preservation of liberty that the Legisl: Execut: & Judiciary
powers be separate, it is essential to a maintenance of the separation,
that they should be independent of each other. The Executive could not be
independent of the Legislure, if dependent on the pleasure of that branch
for a re-appointment. Why was it determined that the Judges should not
hold their places by such a tenure? Because they might be tempted to
cultivate the Legislature, by an undue complaisance, and thus render the
Legislature the virtual expositor, as well as the maker of the laws. In
like manner a dependence of the Executive on the Legislature, would render
it the Executor as well as the maker of laws; & then according to the
observation of Montesquieu, tyrannical laws may be made that they may be
executed in a tyrannical manner. There was an analogy between the
Executive & Judiciary departments in several respects. The latter
executed the laws in certain cases as the former did in others. The former
expounded & applied them for certain purposes, as the latter did for
others. The difference between them seemed to consist chiefly in two
circumstances—1. the collective interest & security were much
more in the power
[pg 381]
belonging to the Executive than to the Judiciary department. 2. in the
administration of the former much greater latitude is left to opinion and
discretion than in the administration of the latter. But if the 2
consideration proves that it will be more difficult to establish a rule
sufficiently precise for trying the Execut: than the Judges, & forms
an objection to the same tenure of office, both considerations prove that
it might be more dangerous to suffer a Union between the Executive &
Legisl: powers, than between the Judiciary & Legislative powers. He
conceived it to be absolutely necessary to a well constituted Republic
that the two first sh
be kept distinct & independent of
each other. Whether the plan proposed by the motion was a proper one was
another question, as it depended on the practicability of instituting a
tribunal for impeachm
ts
as certain & as adequate in the one
case as in the other. On the other hand, respect for the mover entitled
his proposition to a fair hearing & discussion, until a less
objectionable expedient should be applied for guarding ag
st
dangerous union of the Legislative & Executive departments.
[135]
The
view here taken of the subject was meant to aid in parrying the
animadversions likely to fall on the motion of D
Clurg,
for whom J. M. had a particular regard. The Doc
though
possessing talents of the highest order was modest & unaccustomed
to exert them in public debate.—Note in Madison's
handwriting.
Col. Mason. This motion was made some time ago & negatived by a very
large majority. He trusted that it w
be again negatived. It w
be impossible to define the misbehaviour in such a manner as to subject it
to a proper trial; and perhaps still more impossible to compel so high an
offender holding his office by such a tenure to submit to a trial. He
considered an Executive during good behavior as a softer name only for an
Executive for life. And that the next would be an easy step to hereditary
Monarchy. If the motion should finally succeed, he might himself live to
see such a Revolution. If he did not it was probable his children or grand
children would. He trusted there were few men in that House who wished for
it. No state he was sure had
[pg 382]
so far revolted from Republican
principles as to have the least bias in its favor.
Madison, was not apprehensive of being thought to favor any
step towards monarchy. The real object with him was to prevent its
introduction. Experience had proved a tendency in our governments to throw
all power into the Legislative vortex. The Executives of the States are in
general little more than Cyphers; the legislatures omnipotent. If no
effectual check be devised for restraining the instability &
encroachments of the latter, a revolution of some kind or other would be
inevitable. The preservation of Republican Gov
therefore
required some expedient for the purpose, but required evidently at the
same time that in devising it, the genuine principles of that form should
be kept in view.
Gov
Morris was as little a friend to monarchy as
any gentleman. He concurred in the opinion that the way to keep out
monarchical Gov
was to establish such a Repub. Gov
as w
make the people happy and prevent a desire of change.
Doc
McClurg was not so much afraid of the shadow of monarchy
as to be unwilling to approach it; nor so wedded to Republican Gov
as not to be sensible of the tyrannies that had been & may be
exercised under that form. It was an essential object with him to make the
Executive independent of the Legislature; and the only mode left for
effecting it, after the vote destroying his ineligibility a second time,
was to appoint him during good behavior.
On the question for inserting "during good behavior" in place of '7
years (with a re-eligibility)' it passed in the negative,
Mas. no. C
no. N. J. ay. P
ay.
Del. ay. M
no. V
ay. N. C. no.
S. C. no. Geo. no.
[136]
[136]
(This
vote is not considered as any certain index of opinion, as a number in
the affirmative probably had it chiefly in view to alarm those
attached to a dependence of the Executive on the Legislature, &
thereby facilitate some final arrangement of a contrary tendency. The
avowed friends of an Executive, during good behaviour were not more
than three or four, nor is it certain they would finally have adhered
to such a tenure, an independence of the three great departments of
each other, as far as possible, and the responsibility of all to the
will of the community seemed to be generally admitted as the true
basis of a well constructed government.)—Note in Madison's
hand, except from the words "nor is it certain" etc., which is in the
hand of his wife's brother, John C. Payne.
[pg 383]
On the motion "to strike out seven years" it passed in the negative,
Mas. ay. C
no. N. J. no. P
ay.
Del. ay. M
no. V
no. N. C. ay.
S. C. no. Geo. no.
[137]
[137]
(There
was no debate on this motion. The apparent object of many in the
affirmative was to secure the re-eligibility by shortening the term,
and of many in the negative to embarrass the plan of referring the
appointment and dependence of the Executive to the Legislature.)—Note
in Madison's hand.
It was now unanimously agreed that the vote which had struck out the words
"to be ineligible a second time" should be reconsidered to-morrow.
Adj
Wednesday July 18. in Convention.
On motion of M
L. Martin to fix tomorrow for reconsidering the
vote concerning "eligibility of the Exec
tive
a 2
time" it passed in the affirmative.
Mas. ay. Con
ay. N. J. absent. P
ay.
Del. ay. M
ay. V
ay. N. C. ay.
S. C. ay. Geo. absent.
The residue of the Resol. 9. concerning the Executive was postp
till tomorrow.
Resol. 10. that Executive sh
have a right to negative
legislative acts not afterwards passed by 2/3 of each branch, agreed to
nem. con.
[pg 384]
Resol. 11. "that a Nat
Judiciary shall be estab
to
consist of one supreme tribunal", ag
to nem. con.
"The judges of which to be appoint
by the 2
branch
of the Nat
Legislature,"
Ghorum, w
prefer an appointment by the 2
branch to an appointm
by the whole Legislature; but he thought
even that branch too numerous, and too little personally responsible, to
ensure a good choice. He suggested that the Judges be appointed by the
Execu
ve
with the advice & consent of the 2
branch, in the mode prescribed by the constitution of Mas
ts
This mode had been long practised in that country, & was found to
answer perfectly well.
Wilson, still w
prefer an appointm
by the Executive; but if that could not be attained, w
prefer
in the next place, the mode suggested by M
Ghorum. He thought
it his duty however to move in the first instance "that the Judges be
appointed by the Executive." M
Gov
Morris 2
ded
the motion.
L. Martin was strenuous for an app
by the 2
branch. Being taken from all the States it w
be best informed
of characters & most capable of making a fit choice.
Sherman concurred in the observations of M
Martin, adding that the Judges ought to be diffused, which would be more
likely to be attended to by the 2
branch, than by the
Executive.
Mason. The mode of appointing the Judges may depend in some
degree on the mode of trying impeachments of the Executive. If the Judges
were to form a tribunal for that purpose, they surely ought not to be
appointed by the Executive. There were insuperable objections besides ag
st
referring the appointment to the Executive. He mentioned as one, that as
the Seat of Gov
must be in some one State, and as the
Executive would remain in office for a considerable time, for 4. 5. or 6
years at least, he would insensibly form local & personal attachments
[pg 385]
within the particular State that would deprive equal merit elsewhere, of
an equal chance of promotion.
Ghorum. As the Executive will be responsible in point of
character at least, for a judicious and faithful discharge of his trust,
he will be careful to look through all the States for proper characters.
The Senators will be as likely to form their attachments at the seat of
Gov
where they reside, as the Executive. If they cannot get
the man of the particular State to which they may respectively belong,
they will be indifferent to the rest. Public bodies feel no personal
responsibility, and give full play to intrigue & cabal. Rh. Island is
a full illustration of the insensibility to character produced by a
participation of numbers in dishonorable measures, and of the length to
which a Public body may carry wickedness & cabal.
Gov
Morris supposed it would be improper for an
impeachm
of the Executive to be tried before the Judges. The
latter would in such case be drawn into intrigues with the Legislature and
an impartial trial would be frustrated. As they w
be much
about the Seat of Gov
they might even be previously consulted
& arrangements might be made for a prosecution of the Executive. He
thought therefore that no argument could be drawn from the probability of
such a plan of impeachments ag
st
the motion before the House.
Madison suggested that the Judges might be appointed by the
Executive, with the concurrence of 1/3 at least, of the 2
branch. This would unite the advantage of responsibility in the Executive
with the security afforded in the 2
branch ag
st
any
incautious or corrupt nomination by the Executive.
Sherman, was clearly for an election by the Senate. It would
be composed of men nearly equal to the Executive, and would of course have
on the whole more wisdom. They would bring into their deliberations
[pg 386]
more diffusive knowledge of characters. It would be less easy for
candidates to intrigue with them, than with the Executive Magistrate. For
these reasons he thought there would be a better security for a proper
choice in the Senate than in the Executive.
Randolph. It is true that when the app
of the
Judges was vested in the 2
branch an equality of votes had not
been given to it. Yet he had rather leave the appointm
there
than give it to the Executive. He thought the advantage of personal
responsibility might be gained in the Senate by requiring the respective
votes of the members to be entered on the Journal. He thought too that the
hope of receiving app
ts
would be more diffusive if they
depended on the Senate, the members of which w
be diffusively
known, than if they depended on a single man who could not be personally
known to a very great extent; and consequently that opposition to the
System, would be so far weakened.
Bedford thought there were solid reasons ag
st
leaving the appointment to the Executive. He must trust more to
information than the Senate. It would put it in his power to gain over the
larger States, by gratifying them with a preference of their Citizens. The
responsibility of the Executive so much talked of was chimerical. He could
not be punished for mistakes.
Ghorum remarked that the Senate could have no better
information than the Executive. They must like him, trust to information
from the members belonging to the particular State where the candidate
resided. The Executive would certainly be more answerable for a good
appointment, as the whole blame of a bad one would fall on him alone. He
did not mean that he would be answerable under any other penalty than that
of public censure, which with honorable minds was a sufficient one.
On the question for referring the appointment of
[pg 387]
the Judges to the
Executive, instead of the 2
branch
Mas. ay. Con
no. P
ay. Del. no.
no. V
no. N. C. no. S. C. no.
Geo. absent.
Ghorum moved "that the Judges be nominated and appointed by
the Executive, by & with the advice & consent of the 2
branch & every such nomination shall be made at least ——
days prior to such appointment." This mode he said had been ratified by
the experience of a 140 years in Massachus
ts
. If the app
should be left to either branch of the Legislature, it will be a mere
piece of jobbing.
Gov
Morris 2
ded
& supported the
motion.
Sherman thought it less objectionable than an absolute
appointment by the Executive; but disliked it, as too much fettering the
Senate.
Question on M
Ghorum's motion
Mas. ay. Con
no. P
ay. Del. no.
ay. V
ay. N. C. no. S. C. no.
Geo. absent.
Madison moved that the Judges should be nominated by the
Executive & such nomination should become an appointment if not
disagreed to within —— days by 2/3 of the 2
branch.
Gov
Morris 2
ded
the motion. By com̃on
consent the consideration of it was postponed till tomorrow.
"To hold their offices during good behavior" & "to receive fixed
salaries" agreed to nem: con:.
"In which (salaries of Judges) no increase or diminution shall be made so
as to affect the persons at the time in office."
Gov
Morris moved to strike out "or increase." He
thought the Legislature ought to be at liberty to increase salaries as
circumstances might require, and that this would not create any improper
dependence in the Judges.
Doc
Franklin was in favor of the motion. Money may not only
become plentier, but the business of the department may increase as the
Country becomes more populous.
[pg 388]
Madison. The dependence will be less if the
increase
alone
should be permitted, but it will be improper even so far to
permit a dependence. Whenever an increase is wished by the Judges, or may
be in agitation in the legislature, an undue complaisance in the former
may be felt towards the latter. If at such a crisis there should be in
Court suits to which leading members of the Legislature may be parties,
the Judges will be in a situation which ought not to be suffered, if it
can be prevented. The variations in the value of money, may be guarded ag
st
by taking for a standard wheat or some other thing of permanent value. The
increase of business will be provided for by an increase of the number who
are to do it. An increase of salaries may easily be so contrived as not to
affect persons in office.
Gov
Morris. The value of money may not only
alter but the State of Society may alter. In this event the same quantity
of wheat, the same value would not be the same compensation. The Amount of
salaries must always be regulated by the manners & the style of living
in a Country. The increase of business can not be provided for in the
supreme tribunal in the way that has been mentioned. All the business of a
certain description whether more or less must be done in that single
tribunal. Additional labor alone in the Judges can provide for additional
business. Additional compensation therefore ought not to be prohibited.
On the question for striking out "or increase"
Mas. ay. Con
ay. P
ay. Del. ay.
ay. V
no. N. C. no. S. C. ay.
Geo. absent
The whole clause as amended was then agreed to nem: con:
12. Resol: "that Nat
Legislature be empowered to appoint
inferior tribunals"
Butler could see no necessity for such tribunals. The State
Tribunals might do the business.
[pg 389]
L. Martin concurred. They will create jealousies &
oppositions in the State tribunals, with the jurisdiction of which they
will interfere.
Ghorum. There are in the States already federal Courts with
jurisdiction for trial of piracies &c. committed on the Seas. No
complaints have been made by the States or the Courts of the States.
Inferior tribunals are essential to render the authority of the Nat
Legislature effectual.
Randolph observed that the Courts of the States can not be
trusted with the administration of the National laws. The objects of
jurisdiction are such as will often place the General & local policy
at variance.
Gov
Morris urged also the necessity of such a
provision.
Sherman was willing to give the power to the Legislature but
wished them to make use of the State Tribunals whenever it could be done
with safety to the general interest.
Col. Mason thought many circumstances might arise not now to be foreseen,
which might render such a power absolutely necessary.
On question for agreeing to 12. Resol: empowering the National Legislature
to appoint "inferior tribunals," Ag
to nem. con.
"Impeachments of national officers," were struck out on motion for the
purpose.
13. Resol: "The jurisdiction of the Nat
Judiciary." Several
criticisms having been made on the definition; it was proposed by M
Madison so to alter it as to read thus—"that the jurisdiction shall
extend to all cases arising under the Nat
laws; And to such
other questions as may involve the Nat
peace & harmony,"
which was agreed to, nem. con.
Resol. 14. providing for the admission of new States agreed to, nem. con.
Resol. 15. that provision ought to be made for the
[pg 390]
continuance of Cong
&c. & for the completion of their engagements."
Gov
Morris thought the assumption of their
engagements might as well be omitted; and that Cong
ought not
to be continued till all the States should adopt the reform; since it may
become expedient to give effect to it whenever a certain number of States
shall adopt it.
Madison the clause can mean nothing more than that provision
ought to be made for preventing an interregnum; which must exist in the
interval between the adoption of the New Gov
and the
commencement of its operation, if the old Gov
should cease on
the first of these events.
Wilson did not entirely approve of the manner in which the
clause relating to the engagements of Cong
was expressed; but
he thought some provision on the subject would be proper in order to
prevent any suspicion that the obligations of the Confederacy might be
dissolved along with the Govern
under which they were
contracted.
On the question on the 1
st
part—relating to the
continuance of Cong
Mas. no. Con
no. P
no. Del. no.
no. V
ay. N. C. ay. S. C.
[138]
ay. Geo. no.
[138]
In the
printed Journal, S. Carolina—no. Note in Madison'shand.
The 2
part as to completion of their engagements, disag
to, nem. con.
Resol. 16. "That a Republican Constitution & its existing laws ought
to be guaranteed to each State by the U. States."
Gov
Morris, thought the Resol: very
objectionable. He should be very unwilling that such laws as exist in R.
Island should be guaranteed.
Wilson. The object is merely to secure the States ag
st
dangerous commotions, insurrections and rebellions.
[pg 391]
Col. Mason. If the Gen
Gov
should have no right to
suppress rebellions ag
st
particular States, it will be in a bad
situation indeed. As Rebellions ag
st
itself originate in &
ag
st
individual States, it must remain a passive Spectator of
its own subversion.
Randolph. The Resol
has 2. objects. 1. to secure
a Republican Government. 2. to suppress domestic commotions. He urged the
necessity of both these provisions.
Madison moved to substitute "that the Constitutional
authority of the States shall be guaranteed to them respectively ag
st
domestic as well as foreign violence."
Doc
McClurg seconded the motion.
Houston was afraid of perpetuating the existing
Constitutions of the States. That of Georgia was a very bad one, and he
hoped would be revised & amended. It may also be difficult for the Gen
Gov
to decide between contending parties each of which claim
the sanction of the Constitution.
L. Martin was for leaving the States to suppress Rebellions
themselves.
Ghorum thought it strange that a Rebellion should be known
to exist in the Empire, and the Gen
Gov
sh
be restrained from interposing to subdue it. At this rate an enterprising
Citizen might erect the standard of Monarchy in a particular State, might
gather together partizans from all quarters, might extend his views from
State to State, and threaten to establish a tyranny over the whole &
the Gen
Gov
be compelled to remain an inactive
witness of its own destruction. With regard to different parties in a
State; as long as they confine their disputes to words, they will be
harmless to the Gen
Gov
& to each other. If
they appeal to the sword, it will then be necessary for the Gen
Gov
, however difficult it may be to decide on the merits of
their contest, to interpose & put an end to it.
[pg 392]
Carrol. Some such provision is essential. Every State ought
to wish for it. It has been doubted whether it is a casus federis at the
present. And no room ought to be left for such a doubt hereafter.
Randolph moved to add as an amend
to the motion;
"and that no State be at liberty to form any other than a Republican Gov
."
Madison seconded the motion.
Rutlidge thought it unnecessary to insert any guarantee. No
doubt could be entertained but that Cong
had the authority if
they had the means to co-operate with any State in subduing a rebellion.
It was & would be involved in the nature of the thing.
Wilson moved as a better expression of the idea, "that a
Republican form of Governm
shall be guaranteed to each State
& that each State shall be protected ag
st
foreign &
domestic violence.
This seeming to be well received, M
Madison & M
Randolph withdrew their propositions & on the Question for agreeing to
Wilson's motion, it passed nem. con.
Adj
END OF VOL. 1.
Transcriber Notes:
The illustrations have been moved so that they do not break up
paragraphs and so that they are next to the text they illustrate. Thus
the page number of the illustration might not match the page number in
the List of Fac-Similes, and the order of illustrations may not be the
same in the List of Fac-Similes and in the book.
This document was filled with errors and inconsistencies in punctuations
and hyphenation. For example, usually the word re-eligible is
hyphenated, but sometimes it is not; sometimes; reinstated is hyphenated
but sometimes it is not; and usually the comma is used as a thousand
mark, but sometimes a period is used for that purpose. Also, the
abbreviations were not uniform (e.g., Mas. v. Mass.), which were only
corrected when it was clear which abbreviation was considered correct at
the time printed. Another example is the abbreviation for Resolution,
which was sometimes Resol:
, sometimes Resol
, and
sometimes Resol.
. Sometimes "nem: con." was used, and
sometimes "nem. con." was used. The only time errors were corrected was
when it was very clear that an error was made, and it was clear how the
error should be corrected, and those corrections are listed below. One
exception is the case where a period is missing at the end of a
sentence, which happened so often that those corrections were made but
were not listed below.
Similarly, since the English language has changed so much in the past
two hundred years, variations in spelling were only corrected was when
it was very clear that an error was made, and it was clear how the error
should be corrected. Those corrections are listed below.
The Contents of Volume I. page incorrectly lists the Chronology as
starting on page xix, where it starts on page xv.
In Footnote 25, two instances of "thier" was replaced with "their".
On page 23, a comma was added after "Massachusetts".
On page 23, a comma was added after "New York".
On page 39, a comma was added after "Savannah Georgian".
On page 42, the semicolon after "for general propositions" was replaced
with a period.
On page 49, a quotation mark was added after "be instituted.".
On page 67, "tranquility" was replaced with "tranquillity".
On page 80, "is to to be" was replaced with "is to be".
On page 85, a period was added after "2".
On page 85, a period was added after "4".
On page 87, a comma was added after "the landed".
On page 104, "that" was replaced with "than".
On page 105, "M
Bedford In" was replaced with "M
Bedford, in".
On page 109, "M
Randolph, urged" was replaced with "M
Randolph urged".
On page 117, "against the 43." was replaced with "against the 43,".
On page 119, "it was formerly practised" was replaced with "It was
formerly practised".
On page 119, "Wilsons" was replaced with "Wilson's".
On page 128, a closing quotation mark was placed after "7 years."
On page 143, a period was added after "2".
On page 159, "unamimous" was replaced with "unanimous".
On page 162, the quotation mark was removed before "The supreme
Legislative power".
In Footnote 89, "conpensation" was replaced with "compensation".
In Footnote 89, "misdemesnor" was replaced with "misdemeanor".
In Footnote 89, "Where shall be" was replaced with "There shall be".
In Footnote 89, "§[2]" was replaced with "§ 2.".
On page 164, "Comittee" was replaced with "Committee".
On page 180, "tranquility" was replaced with "tranquillity".
On page 184, "necessaryly" was replaced with "necessarily".
In Footnote 95, "posseses" was replaced with "possesses".
On page 211, "Wiliamson" was replaced with "Williamson".
On page 217, in two instances, "Masst
" was replaced with
"Mass
ts
".
On page 220, a comma was deleted after "M
Sherman".
On page 233, a period was placed after "1".
On page 236, a quotation mark was placed after "behaviour".
On page 256, a comma was placed after "Antient Greece".
On page 264, a semicolon was replaced with a period.
On page 271, "Comittee" was replaced with "Committee".
On page 274, "prepondenancy" was replaced with "preponderancy".
On page 285, "Elsewth" was replaced with "Elseworth".
On page 285, "Contstitution" was replaced with "Constitution".
On page 286, "honorabl" was replaced with "honorable".
On page 292, "occcasion" was replaced with "occasion".
On page 293, "N J." was replaced with "N. J.".
On page 322, "Teusday" was replaced with "Tuesday".
On page 322, "Hamshire" was replaced with "Hampshire".
On page 323, "Hamshire" was replaced with "Hampshire".
On page 323, "inhabts" was replaced with "inhab
ts
".
On page 323, "brethern" was replaced with "brethren".
On page 330, "brethern" was replaced with "brethren".
On page 336, "Mississpi" was replaced with "Mississippi".
On page 340, "Mard" was replaced with "M
".
On page 340, "S." was replaced with "S. C.".
On page 348, "Hamshire" was replaced with "Hampshire".
On page 356, "weekest" was replaced with "weakest".
On page 365, "orginal" was replaced with "original".
On page 372, the quotation mark was removed before "or in which the
harmony".
Throughout the document, there are instances of missing quotation marks,
but it is unclear where quotation marks should be added. In those cases,
the quotation marks were left as-is.
Throughout the document, "Maddison" was replaced with "Madison", and
"Sharman" was replaced with "Sherman".
Although the document refers more often to a Mr. Patterson, instead of
Mr. Paterson, some external sources indicate that the delegate's
name was Mr. Paterson. Both spellings were retained as-is.
*** END OF THE PROJECT GUTENBERG EBOOK 40861 ***